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The CAS Judgment re FN: What’s Next?

The devastating Fantoni-Nunes (FN) case, as well as the recent case of the coughing doctors (who also won their case in a non-bridge-based court), brings us to the most important question of all questions: what now?

In short, first we’re going to analyze the Court of Arbitration for Sport (CAS) ruling. Then compare the ACBL approach to that of the WBF/EBL before making recommendations for the near future.

 

I. The CAS Judgment

(A) The peculiar nature of CAS as court of last instance

The Procedural Rules of the CAS clearly indicate that it is a normal appellate court of last instance, ie its decisions are final and cannot be appealed. In this regard, it is necessary to make clear that the role of a normal appellate court is not to adjudicate on the question of whether assessments made in a disciplinary report are correct or whether discretionary decisions to ban bridge players for cheating are correct. Discretionary decisions of these types, involving assessment and evaluation of bridge related facts, are entrusted to the responsible bodies of the relevant bridge organization. These types of decisions can only be set aside if they involve some breach of a formal or procedural rule, there is a mistake of fact or law or some material has been overlooked, or a plainly mistaken conclusion has been drawn from the facts, or if there is misuse of authority.

But an extraordinary authority is given to CAS in the second sentence of the CAS Procedural Rule 57: “... It may issue a new decision which replaces the decision challenged ...”. This unique authority for an appellate court is of enormous importance to the bridge community for two reasons.

First, a new CAS decision - no matter how irrational it is - cannot be challenged. As such, the CAS becomes a court of sole instance. It is unheard of in modern legal history that a court dealing with allegations of misconduct in disciplinary cases can make decisions that cannot be appealed.

Second, this authority allows the CAS to do something no appeal court can do: to substitute its own views for those of experts. In other words, conclusions made by (bridge) experts in a lower court after studying the facts, can be replaced by conclusions of judges with no (bridge) expertise.

As Nick Krnjevic pointed out in his excellent comment on the original FN BW article, very surprisingly CAS handled the case “in nova” instead of handling it as a normal appeal court would do. We will come back to this issue.

 

(B)The irrational CAS Judgment: not guilty but not innocent

CAS should have considered that either there was sufficient admissible evidence of the guilt of FN as accused cheaters or there was not. If there was not enough admissible evidence to convince the CAS, the charge should have been dismissed; if there was enough such evidence, then there should have been a confirmation of guilt. What is not permissible is to take a stand somewhere between the two, which is what CAS did. After accepting the FN appeal in paragraph 123 of the Judgment, it states: “... : Such conclusion does not mean that the Players are innocent of any wrongdoing ... “.

It is really remarkable that the Judgment states explicitly that while they are not guilty, they are not innocent.

 

(C) CAS made an error of law in not respecting the uniqueness of cheating in bridge

The CAS typically handles cases such as doping, sponsorships, TV rights, contracts, etc. Such cases normally have written evidence and witnesses. When dealing with cheating in bridge, there are no witnesses or written documents. There are only visual observations and bridge-based correlation analysis of a physical action and the actual bridge hand.

It is well settled in modern law that the burden of proof rests on an obligation to prove allegations of misconduct, such as cheating in bridge, beyond a reasonable doubt before a disciplinary sanction is imposed. It is also well established that a player accused of cheating is presumed to be innocent and is to be given the benefit of the doubt.

However, courts have consistently emphasized that adducing material evidence is especially difficult in a special group of cases, such as sexual harassment, corruption or market manipulation where (1) nothing is put in writing by the parties and (2) everything often takes place without the involvement of third parties who might be called as witnesses. Cheating in bridge fulfills these conditions. A player who is accused of cheating is certainly entitled to due process offering him every opportunity to defend his interests, and the burden of proof always falls upon the relevant bridge authority. However, the latter’s investigation will not be required to culminate in the establishment of absolute proof. All that is needed is a set of precise and concurring presumptions removing any reasonable doubt that the acts in question actually took place. And we have more than 80 such clear-cut FN cases.

The CAS failed in taking this into account, probably because it has no experience in dealing with cases without witnesses and written evidence.

 

(D) CAS misinterpretation of the law and of the facts

Professor Greg Lawler submitted an excellent report containing the relevant statistical analysis (it is the only statistical report I’ve seen regarding this case). But he did more: he explicitly stressed the essence of this case, namely that you don't need to figure out a complete code in order to find FN guilty of signaling. All that is needed is a set of precise and concurring presumptions removing any reasonable doubt that the cheating in question actually took place. This is all in the Lawler report. It is inexplicable that the CAS didn’t take this major fact into account. Instead the court focused on the few cases where FN didn’t use the Code (the “false-positives”) and concluded that, consequently, there wasn’t any proof of the code.

Had the CAS heard the Harvey Weinstein case, using this same methodology of false-positives, it would find him not guilty of sexual harassment because the court found three female colleagues that were not harassed by him.

 

(E) CAS ignorance of “hearsay evidence”

Paragraph 121 of the CAS FN Judgment makes clear that statements made by Piekarek and Smirnov regarding the cheating methods of FN would not be considered by the CAS as “this is only hearsay”. CAS is mistaken in this regard, as in most other legal considerations. It is a well established rule of law that hearsay evidence is not necessarily inadmissible. The question is always one of its probative value. Of considerable interest is how ACBL treats hearsay evidence in its appeal process. See below.

 

(F) CAS is the inventor of the “comfortable satisfaction” standard of proof

Reading through the various documents describing the nature of the CAS, we often get the feeling that the CAS is first of all a self-centered Court of vanity. A sentence like the “... CAS Tribunal is a rare example of a neutral Court which acts with international jurisdiction” suffice as an example (truthfully there are dozens of similar courts operating in the world today on diverse issues like trade, war crimes and labor disputes).

For decades, and for centuries in some cases, the standard of proof of guilt in judicial systems has been one of three logical categories: “absolute proof” (strongest), “on the balance of probabilities” (weakest), and “beyond reasonable doubt” which is somewhere in the middle. The CAS, of course, being so unique and “rare” had to create a new standard: “comfortable satisfaction”. Needless to say, this judicial novelty is completely useless at best, and a harmful confusion in most cases. It’s best to quote Pope Francis here: “Whoever gives in to such self-absorbed vanity has huge misery hiding inside them”. Such as the misery of the FN case.

I raise this point here because the CAS standard has somehow found its way into the ACBL appeal process. See below.

 

 

II. The Next Steps

 

The EBL (and the WBF) is by now firmly in bed with the CAS. Looking at the EBL Disciplinary Code, latest version dated Oct 1; 2017, we see already in the first paragraph “1.1 In accordance with the sporting ideals and precepts of the Olympic Charter... “. Regarding appeals the Code reads, inter alia:

“9.1. The reasoned decision of the EBL Disciplinary Tribunal may be appealed exclusively to the Court of Arbitration for Sport (Lausanne) “CAS” to be resolved in accordance with the Code of Sports-related Arbitration” (emphasis added”.

However, we need to understand why the EBL took this line and we all know why: being defined as “sport” gives access to financial support from most European states. Admittedly, the financially weak European bridge federations are in great need of financial support. The issue is simple: do the benefits of receiving financial assistance from tax-payers outweigh the cost of loosing independence? This is a decision that Europe alone can make.

I must say I’m proud of my bridge federation, the ACBL. Not only did it not go down the EBL road but it also strengthened its internal documented procedures in cases involving allegations of cheating. The main document is CODE OF DISCIPLINARY REGULATIONS AMENDED AND RESTATED JULY 2017 (effective August 1, 2017). This document is a masterpiece in both design and execution, containing not only the procedural rules but also detailed guidelines of practical steps. Admittedly, the 90 pages are not easy to read but it has to be stated that they cover, as far as I can see, all issues relevant to proper due process.

In line with quality judicial procedures, unlike the CAS, the ACBL states “an appellate body may not hear a case in novo”. It states, again unlike the CAS, that “... relevant evidence, including hearsay evidence, must be admitted ...” (emphasis added), then giving the normal reservations about the nature of hearsay evidence. Again, this is in line with modern judicial thinking. Finally, on page 78 there is this wonderful text:

“The appellate hearing will usually be based upon the record of the original hearing body. New evidence may not be admitted. Therefore, the appellate body should be especially careful when receiving arguments to ensure that "new" material, if submitted, is not considered.”

If you have managed to stay awake going through the text above, you’ll not be surprised to read the following five recommendations for the near future:

(1). The ACBL should be congratulated for the approach it took and for the top quality work it did on designing and implementing a rock-solid process to deal with cheating in bridge. The ACBL has shown true leadership in this matter and we, bridge players, need to explicitly show our support to them for keeping us out of the mess our European friends are now in.

(2). However, the ACBL may want to consider making one minor change in its Regulations: Eliminate the “comfortable satisfaction” standard that has somehow crept from Lausanne over the pond to the US. There is no need to adopt murky CAS concepts into our purity. More important, if a cheating case goes to a civil court in the US, that court might be unhappy with this abnormal standard.

(3). As previously stated, it is up to Europe to decide if it takes the money and accepts the jurisdiction of the CAS, or stays free and poor. However, I stand with Boye on this issue when he wrote: “We have to stop chasing an Olympic dream which weakens the integrity of the game”. After all, did we really submit to the CAS because of a burning aspiration to pursue the Olympic dream?

(4). I can only speak for myself on this issue but I would refuse to play against FN, as well as the coughing doctors, even if it would cost me suspension. I can only hope that others are prepared to do the same. However, I would play against both Piekarek and Smirnov. They came forward, admitted guilt and received the penalty. They should be accepted back. I realize that many will be unhappy with this recommendation but forgiveness is the attribute of the strong, as Mahatma Gandhi put it so well.

(5). The leadership of the WBF responsible for taking us to Mountain Olympus should step down. By leadership I also mean all appropriate officials, especially of a legal capacity. Even if this mountain is high, they should have seen the traps: the absolute authority they gave to the CAS; the vanity of the CAS. Again, I stand with Boye - my hero - who wrote on this subject: “We need to change leadership which has failed on their duty. Bridge players, now is the time to stand tall for the card game we love and play it fairly, honorably and passionately. That's the culture we need to embrace and shun mentality like "it's all about what you can get away with".

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