As mysterious case of Celtic Glasgow and Legia Warsaw is getting more and more attention in international media, rumours, misinterpretations and – in fact – untruths are repeated even by Polish journalists. So what is it really all about?
And for the record – we concentrate only on facts and provisions of applicable law. No speculations and wishful thinking.
Legia beat Celtic in both games of the Champions League qualifications third round: 4:1 in Warsaw – with two penalties missed by Legia's skipper Ivica Vrdoljak – and 2:0 in second leg played in Edinburgh (6:1 in aggregate). On Thursday afternoon, a day before a draw of the Champions League and the Europa League qualifications final rounds, it was reported for the first time that UEFA could “disqualify” or “exclude” the Polish champion from the Champions League. However, multiple sources close to Legia suggested the club was pretty confident such a penalty wouldn't be imposed; Legia had also provided UEFA with documentation required thereby. Anyway, a proceedings was in progress.
The case got tense on Friday morning. Boguslaw Lesnodorski, Legia's shareholder and the president of the management board, travelled to Nyon in order to take part in the proceedings (or, like he claimed later, to do whatever was needed to keep Legia in the Champions League). Reports tended to state that a decision by UEFA competent body would be beneficial to Celtic and, as a result, Legia would be punished and forced to play in the Europa League instead.
Just before 11 AM, Lesnodorski wrote on Twitter:
This year CL not for us... I've failed.
As the draw was approaching, UEFA posted following statement on its website:
Legia forfeit Celtic match
The UEFA Control, Ethics and Disciplinary Body has met today and announced the following disciplinary decision following the 2014/15 UEFA Champions League third qualifying round tie in Edinburgh between Celtic FC and Legia Warszawa on 6 August 2014.
Legia have been sanctioned for fielding a suspended player (article 18 of the UEFA Champions League regulations and article 21 of the Disciplinary Regulations). The match has been declared as forfeit meaning Legia Warszawa have lost the match 3-0.
As a consequence, Celtic have qualified for the UEFA Champions League play-offs on away goals (agg: 4-4) and Legia will compete in the UEFA Europa League play-offs.
In addition the player Bartosz Bereszynski has been suspended for one additional UEFA competition match for which he would be otherwise eligible. This suspension shall be added to the remaining two match suspension which the player still has to serve in accordance with the Control and Disciplinary Body decision of 13 February 2014.
II. “The beginning”
In order to clarify the case, we have to go back to 12th of December 2013 (previous season of the Europa League). Legia played its last game of group stage away against Apollon Limassol after five consecutive defeats. Legia was already on two-goal lead, thanks to goals of Tomasz Jodlowiec and Tomasz Brzyski, when on 67th minute Jakub Rzezniczak, Legia's defender, was fouled harshly by Apollon's midfielder Gaston Sangoy. Bartosz Bereszynski immediately ran towards Sangoy and pushed him to the turf. There was a little bit of mess on the pitch, with players from both teams having plenty to tell to their opponents, but as soon as it was over Sangoy and Bereszynski were collectively sent off.
Red cards – watch from 1:28.
Consequently, Bereszynski was suspended by The Control and Disciplinary Body for three games in all UEFA club competitions. He was to serve the suspension in following season as the Apollon game was Legia's last in UEFA club competitions that season.
According to article 22 par. 1 of Regulations of the UEFA Europa League, 2012-15 Cycle, 2013/14 Season:
As a rule, a player who is sent off the field of play is suspended for the next match in a UEFA club competition. The Control and Disciplinary Body is entitled to augment this punishment. For serious offences the punishment can be extended to all UEFA competition categories.
III. The problem of eligibility
The clue of the case is a condition under which a player can lawfully serve a suspension. Pursuant to article 18 par. 1 of Regulations of the UEFA Champions League, 2012-15 Cycle, 2014/15 Season:
In order to be eligible to participate in the UEFA club competitions, players must be registered with UEFA within the requested deadlines to play for a club and fulfil all the conditions set out in the following provisions. Only eligible players can serve pending suspensions.
The provision in question is clear and sets forth that if a club want its player to participate in UEFA club competition, the player has to be registered with UEFA within certain time limits. It's necessary to register a player if a club want a suspension to be served in compliance with UEFA regulations.
Severity of suspension consists in precluding player's appearance in a game he could have played in if it hadn't been for a suspension. To be able to play, a player has to be registered. Simple as that.
But not for everyone. Before the Celtic tie, Legia beat Irish side St. Patrick's Athletic (6:1 in aggregate) and Bereszynski hadn't been registered to play therein. It means two matches against St. Patrick's didn't count in terms of the suspension as he was ineligible ergo the suspension couldn't be served. Then, for the purposes of third round, Bereszynski was registered; he wasn't named in Legia's squad for the home game against Celtic. In the away one he was, however, on the bench and additionally came as a late substitution, in 87th minute. As a result, Bereszynski served just third part of the suspension.
IV. The decision
The decision was issued by The Control, Ethics and Disciplinary Body. The matter of its competence is not disputed.
Under article 6 par. 1 of UEFA Disciplinary Regulations, Edition 2014 (applicable pursuant to article 21 par. 1 Regulations of the UEFA Champions League, 2012-15 Cycle, 2014/15 Season, which states: The provisions of the UEFA Disciplinary Regulations apply for all disciplinary offences committed by clubs, officials, members or other individuals exercising a function at a match on behalf of an association or club, unless the present regulations stipulate otherwise.):
The following disciplinary measures may be imposed on member associations and clubs: (...) order that a match be forfeited.
As for Forfeit, article 21 of UEFA Disciplinary Regulations, Edition 2014 provides:
1 If a match cannot take place or cannot be played in full, the member association or club responsible forfeits the match.
2 A match is declared forfeit if a player who has been suspended following a disciplinary decision participates in the match.
3 A match may be declared forfeit if a player who is ineligible under the regulations of the competition concerned participates in the match, as long as the opposing team files a protest.
4 The consequences of a match being declared forfeit are as follows:
a) the team forfeiting the match is deemed to have lost 3-0 (5-0 in futsal competitions), unless the actual result is less favourable to the member association or club at fault, in which case that result stands;
b) if necessary, the UEFA administration amends the member association or club’s ranking in the relevant competition accordingly.
5 If a match is declared forfeit, offences committed during the match remain punishable.
What is important, if a player is suspended following a disciplinary decision and participates in a match, the match is mandatory declared forfeit (optionally only if a player is ineligible i.e. he hasn't been registered). Additionally, the provision concerned doesn't exclude applicability of the away goals rule (see article 8 par. 1 in principio in connection with z article 7 par. 2 of Regulations of the UEFA Champions League, 2012-15 Cycle, 2014/15 Season). Taking into consideration that the second leg of the tie was declared forfeit, the score is 4:4 in aggregate and it is Celtic that have qualified.
V. The Debrecen case
Several Polish sources have indicated that in 2010 The Control and Disciplinary Body (former name of The Control, Ethics and Disciplinary Body) dealt differently with very similar case. However, the latter part (similar case) is not true.
The facts are as follows. In season 2010/2011 of the Europa League (play-offs stage) Debrecen VSC played against Litex Lovech. The Hungarian side won both games: 2:0 at home and 2:1 away. In the second leg András Herczeg, Debrecen's head coach, made a late substitution – in 90th minute Peter Mate came for József Varga. However, Mate hadn't been registered and as a result was ineligible to participate therein. Under a decision of The Control and Disciplinary Body, Debrecen was fined (£15,000).
What are the differences? Firstly, Mate was ineligible, while Bereszynski eligible but suspended. Secondly, provisions on forfeit.
According to article 14bis of Disciplinary Regulations DR, Edition 2008:
1 Any team against which a match is awarded by default shall be deemed to have lost the match 3-0 (5-0 in Futsal competitions). If the actual result is less favourable to the association / club at fault, it will stand.
2 Where matches are played according to the cup (knock-out) system, away goals awarded by default do not count double.
3 In all other cases, the disciplinary body shall decide based on the circumstances, taking into account actual goals scored and goals awarded by default.
4 A default result may be awarded against a team that fields an ineligible player only if the opposing team files a protest, unless the player in question has violated a disciplinary body decision or directive.
The provision in question (par. 4, to be precise) provides that in both situations – when an ineligible player and a suspended player, under disciplinary body decision or directive, are fielded – awarding a match by default was optional (additionally, when it was about a suspended player, a protest wasn't required). While under current regulations, The Control, Ethics and Disciplinary Body is obliged to declare a match forfeit in case of a player suspended, following a disciplinary decision, having participated in a match, former regulations allowed certain scope of discretion for The Control and Disciplinary Body.
VI. To appeal or not to appeal?
On Sunday, during a special press conference, Lesnodorski and Dariusz Mioduski, Legia's majority shareholder and the president of the supervisory board, stated that Legia would appeal not only to the Appeal Body, but also to the Court of Arbitration for Sport. Both admitted chances for a favourable ruling are “slim”, however, according to Mioduski, “between 5 and 75 percent”. Grounds for appeal? On Saturday Zbigniew Boniek, the President of Polish Football Association, had spoken of "breach of some procedural provisions".
Lesnodorski revealed two important facts:
a) the decision had been issued by a single member of The Control, Ethics and Disciplinary Body;
b) he hadn't allowed to participate in a proceedings before The Control, Ethics and Disciplinary Body.
Pursuant to article 23 par. 1 of UEFA Disciplinary Regulations, Edition 2014:
The Control, Ethics and Disciplinary Body consists of a chairman, two vicechairmen and seven other members. As a rule, the Control, Ethics and Disciplinary Body reaches decisions in the presence of all of its members, but it is entitled to take decisions if at least three of its members are present.
This is the rule from which an exception is provided by par. 2:
The chairman of the Control, Ethics and Disciplinary Body, one of its vicechairmen or one of its members acting as ad hoc chairman may take a decision as a judge sitting alone:
a) in urgent or protest cases; or
b) in cases where the sanction imposed is a warning, a reprimand, a fine of up to €25,000, or a suspension from playing or carrying out a function for up to three matches.
Taking (issuing) a decision by a single member thereof, including an “ordinary” member acting as ad hoc chairman, is not contrary to UEFA regulations if premises listed in par. 2 above are fullfilled. Determining Legia's case as urgent sufficed to entitle a single member of The Control, Ethics and Disciplinary Body to take (issue) the decision.
Article 32 of UEFA Disciplinary Regulations, Edition 2014 sets forth:
1 Member associations, clubs, players and officials may be represented.
2 Representatives must prove their authority by means of a signed power of attorney.
3 The competent disciplinary body decides on issues of representation.
1 The disciplinary bodies are convened by their respective chairmen.
2 Unless these regulations specify otherwise, the parties and ethics and disciplinary inspectors are entitled to submit written statements, examine the case file and order copies of the case file before any decision is reached.
3 Hearings are recorded and archived. Parties are not given access to recordings of hearings; however, if a party claims that procedural rules in its favour have been breached during a hearing, the chairman of the competent disciplinary body, or his nominee, may allow that party to listen to and/or view the recording at UEFA headquarters. Recordings are destroyed after five years.
4 The disciplinary bodies may hold hearings and take decisions in the absence of one or all of the parties and/or the ethics and disciplinary inspector.
5 If the requests of the parties and the ethics and disciplinary inspector are identical, the disciplinary bodies may consider ruling in accordance with those requests.
6 If different proceedings are opened against the same member association, club or individual, the relevant disciplinary body may combine the cases and issue one comprehensive decision.
7 The disciplinary bodies may take decisions via teleconference, videoconference or any other such method.
8 All communications concerning member associations, clubs or individuals (including notification of proceedings against them and notification of the decisions taken by the disciplinary bodies) is addressed to the member association or club concerned, which must then, if applicable, inform the individual in person. Such communications take the form of faxes or emails sent by the UEFA disciplinary office.
9 All papers and documents produced during disciplinary proceedings that are not publicly available must be kept confidential.
10 The competent disciplinary body may rectify any mistakes in calculation or any other obvious error in the decision at any time.
Article 39 par. 3:
The chairman of the relevant disciplinary body decides on the examination of witnesses proposed by the parties and the ethics and disciplinary inspector. Each party is responsible for ensuring the availability and covering the costs of the witnesses that it calls.
Article 52 par. 2:
In principle, proceedings before the Control, Ethics and Disciplinary Body are conducted in writing. However, it may, in exceptional circumstances, decide to hold a hearing.
Taking above into consideration, Legia's representatives were entitled to submit written statements in proceedings before The Control, Ethics and Disciplinary Body and examine case files before issuance of the decision. However, if by “participation in proceedings” Lesnodorski meant a hearing (including oral statements) or even examination of witnesses, it has to be emphasised that both of them weren't mandatory.
VII. Appellate procedure
If Legia decide to appeal, the appellate procedure consists of two stages:
a) before the Appeal Body;
b) before the Court of Arbitration for Sport.
Under article 52 of UEFA Disciplinary Regulations, Edition 2014, in principle, the Control, Ethics and Disciplinary Body issues decisions without grounds, and only the operative part of the decision is notified to the parties, who are informed that they have five days from that notification to request, in writing, a decision with grounds. Failure to make such a request results in the decision becoming final and binding and the parties being deemed to have waived their right to lodge an appeal (par. 1). If a decision with grounds is requested within the time limit stipulated above, the time limit for lodging an appeal begins only on notification of the decision with grounds (par. 2). Any appeal lodged within the time limit for requesting a decision with grounds is regarded exclusively as a request for a decision with grounds (par. 3).
Pursuant to article 53 of UEFA Disciplinary Regulations, Edition 2014, the parties directly affected by a decision and the ethics and disciplinary inspector all have the right to appeal (par. 1). A declaration of the intention to appeal against a decision by the Control, Ethics and Disciplinary Body must be lodged with the UEFA administration, in writing, for the attention of the Appeals Body, within three days of notification of the relevant decision with grounds. Competition regulations may, however, shorten this deadline for the sake of the smooth running of the competition in question (par. 2). Within five days of the expiry of the time limit for the declaration of the intention to appeal, the appellant must file, in writing, the grounds for appeal. These must contain a legal request, an account of the facts, evidence, a list of the witnesses proposed (with a brief summary of their expected testimony) and the appellant’s conclusions (in particular on whether to conduct the appeal proceedings orally or in writing. In the absence of any stated preference between written and oral proceedings, the proceedings will be conducted in writing. The parties and the ethics and disciplinary inspector are not authorised to produce further written submissions or evidence after the deadline for filing the grounds for appeal. In urgent cases, the chairman may shorten this deadline (par. 3). The appeal fee is €1,000, payable on submission of the grounds for appeal at the latest. The ethics and disciplinary inspector is not subject to this fee (par. 4). If these deadlines are not observed, the chairman declares the appeal inadmissible (par. 5).
Importantly, an appeal has no staying effect (article 55 par. 1). The chairman may, on receipt of a reasoned request, award a stay of execution (par. 2). Such a request may not be submitted until the decision with grounds has been notified by the Control, Ethics and Disciplinary Body (par. 3).
Under article 58 par. 1-3, the Appeals Body deliberates behind closed doors (par. 1). Within the framework of the appeal proceedings, the Appeals Body re-examines the case from both a factual and a legal perspective (par. 2). The decision by the Appeals Body upholds, amends or overturns the contested decision. In the case of a fundamental mistrial, the Appeals Body can overturn the contested decision and refer the case back to the Control, Ethics and Disciplinary Body for reassessment (par. 3).
Decisions by the Appeals Body are final, subject to Articles 62 and 63 of the UEFA Statutes (article 58 par. 3).
Article 62 of UEFA Statutes Edition 2014 provides:
1 Any decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration.
2 Only parties directly affected by a decision may appeal to the CAS. However, where doping-related decisions are concerned, the World Anti-Doping Agency (WADA) may appeal to the CAS.
3 The time limit for appeal to the CAS shall be ten days from the receipt of the decision in question.
4 An appeal before the CAS may only be brought after UEFA’s internal procedures and remedies have been exhausted.
5 An appeal shall not have any suspensory effect as a stay of execution of a disciplinary sanction, subject to the power of the CAS to order that any disciplinary sanction be stayed pending the arbitration.
6 The CAS shall not take into account facts or evidence which the appellant could have submitted to an internal UEFA body by acting with the diligence required under the circumstances, but failed or chose not to do so.
As for CAS, for the appeals procedure, an award must be pronounced within three months after the transfer of the file to the Panel. In urgent cases and upon request, the CAS may, within a very short time, order interim measures or suspend the execution of a decision appealed against.
VIII. Waiver of “qualification”
Boniek and Mioduski confirmed that one of solutions unofficially approved by UEFA is that Celtic would waive “qualification” for the benefit of Legia. The Scottish club didn't agree to do so and – in particular following its official statement – it is highly unlikely it will agree. However, in his letter to Celtic, Mioduski wrote inter alia:
I therefore call on you to refer to your best traditions of honour and honesty (…). Do not destroy your legacy that you inherited from the past generations of “The Bhoys”. I call you to act according to the spirit of the game and the rules of fair-play (…).
you can read the whole letter.
There was no offer from Legia to play an additional match, like it has been suggested in multiple international reports.
From legal standpoint, the case is not complicated. Bereszynski was suspended under disciplinary decision and The Control, Ethics and Disciplinary Body was obliged to declare the second leg of the tie forfeit, although some procedural provisions of UEFA Disciplinary Regulations, Edition 2014 could have been breached thereby (we don't know relevant facts). Latin legal principles Ignorantia iuris nocet and Dura lex sed lex fit perfectly with the case.
From moral standpoint, for many journalists and fans in Poland the penalty is too severe. It has been compared to such ridiculous hypothetical penalties as “25 years of imprisonment for stealing a lolly pop”. However, others respond “you have to respect rules under which you agreed to play”.
And here we, the Poles, are. Divided once again. This time - over the Polish club having been punished for breaching the law.