The Soccer CAN Decision – The CAS Decision

Soccer Canada’s spying is not an isolated incident, the use of technology to gain a competitive advantage has permeated several professional and international level sports around the world. The CAS had an opportunity to comment on a worldwide issue in Sport; and instead, they ‘punted on 4th and inches’.

Abstract

This is the second instalment in a series outlining the Soccer CAN decision; click here to read the introductory piece setting out the events leading up to the CAS proceedings. For reference, the 19-page Soccer CAN decision can be found here.

The key issue to be examined pertains to Soccer Canada’s dismissed appeal following a 6-point sanction during the 2024 Paris Olympic Games. The following analysis will begin with the CAS appeal mechanism that governed the proceedings and the threshold required for Soccer Canada’s appeal to be accepted. The analysis will then delve into the reasoning provided by the CAS for dismissing Soccer Canada’s appeal.

Intro

Ultimately, the decision to dismiss the appeal due to a lack of gross disproportionality was a missed opportunity to create a reasoned mechanism for evaluating breaches of the principles of fair play, specifically the use of technology to cheat or gain a competitive advantage. Soccer Canada’s spying is not an isolated incident, the use of technology to gain a competitive advantage has permeated several professional and international level sports around the world. The CAS had an opportunity to comment on a worldwide issue in Sport; and instead, they ‘punted on 4th and inches’.

As a Canadian and a follower of the Women’s National Team over their past decade of international success, this decision invoked quite a few emotions. At first, I was outraged that 6 points were deducted; they only spied on New Zealand, why were an additional 3 points deducted for a game they held no competitive advantage in? After reading the decision and letting things settle, my outrage was subdued. However, the overarching question remained; why was there an additional 3 points deducted from a game where there is no competitive advantage?

The answer to this question is still unclear, but in order to understand how the CAS came to their decision, we will unpack the appeal mechanism available to the CAS during these proceedings. A personal opinion section regarding the appeal mechanism will be included as well.

Outline of Proceedings

To begin, this decision was made by the CAS ad-hoc division present at the Paris Olympic Games; this specific panel was composed of Mr. Roberto Moreno (President), Prof. Phillippe Sands (Arbitrator), and Ms. Laila El Shentenawi (Arbitrator). The panel members heard the appeal for Soccer Canada’s 6-point sanction ONLY; the 200,000 fine was not appealed.

The traditional standard applied in appeal cases to the CAS falls in line with Swiss Law; a decision made with discretionary power is assumed to be valid and effective unless a threshold has been crossed (paragraph 73). Since 2014, the threshold in question for a CAS appeal is that a decision must be considered ‘evidently and grossly disproportionate’ to the offence in order to be reviewed (see e.g. CAS 2014/A/3467; CAS 2016/A/4840; CAS 2018/A/5800, paras. 72ff). Furthermore, if a sanction is to be reviewed, the Panel should always have regard and give deference to the association that imposed the original sanction (CAS 2022/A/8651). Here in lies the issue of Soccer Canada’s appeal: despite the supposedly disproportionate 6-point sanction, it is by no means grossly and evidently disproportionate to the offence of spying and violating the principles of fair play during the Olmypic Games.

Strict adherence to the threshold established through the cases cited above has resulted in an appeal process that bears very little fruit from the ‘High Court of Sport’. During the proceedings, Soccer Canada proposed a minority line of reasoning established through several cases that encourages the CAS to use their de novo powers and apply the appropriate sanction to offences appealed to their jurisdiction (CAS 2015/A/4338, at para 51; CAS 2017/A/5003; CAS 2020/A/7596, para 251; CAS 2022/A/8651) (Paragraph 74). Whether the CAS will ever derogate from their stance on applying de novo powers in appeals is an ethical dilemma that is continually being raised; however, I do not think Soccer Canada would benefit from the application of the precedent they proposed.

Personal Opinion

Considering the overwhelming evidence within the decision indicating that Soccer Canada has a systematic approach to cheating through the use of drones in preparation for international matches on both the men’s and women’s sides (paragraph 18 & 61); the CAS was provided its first opportunity to address a violation of the principles of fair play regarding the use of drones and video espionage. The points deduction removed any competitive advantage Soccer Canada obtained when playing New Zealand, but 200,000 does not make for institutional change. This is a pervasive issue in football at both the professional and international level that has also reared its ugly head in professional sports in North America (see Leeds-Derby Spygate, Orlando City, Houston Astros, New England Patriots, etc.). Soccer Canada appears to be at the forefront of this practice, and I for one would not have opposed the hammer of the CAS to have come down on the organization.

Despite this passion, it is unlikely that the CAS would ever act in this way the first time a breach of the principles of fair play regarding video-related cheating is tried: it is plausible to think they will never act this way as there is a delicate dance between the CAS and the organization that legitimize its power. A decision too far during a time in which the legitimacy of the CAS has been called into the question could be the nail in the metaphorical coffin. As a fan of Major League Baseball that had an entire season tainted with a cheating scandal, a World Series victory that will have an asterisk forever, and several teams called out for violating the principle of fair play; I would have supported a heavy-handed decision.

A heavy-handed decision could have resulted in real institutional change, the removal of several staff members who were mentioned during the brief collection of facts permanently; far beyond the three who were punished. Beyond the removal of staff, fines far more significant than 200,000 could have both properly punished Soccer Canada and sent a message to other professional and international football clubs that the use of drones and video to cheat and violate the principles of fair play will not be tolerated by FIFA or the CAS. As Dide Drogba said, “You know, it’s part of the game. “ I don’t know about you, but I do not want cheating to be apart of the game, whether you get caught or not.

Conclusion

The decision to dismiss the appeal due to a lack of gross disproportionality to the offence was a missed opportunity to create a reasoned mechanism for evaluating breaches of the principles of fair play, specifically the use of technology to cheat or gain a competitive advantage. Soccer Canada’s spying is not an isolated incident, the use of technology to gain a competitive advantage has permeated several professional and international level sports around the world. The CAS had an opportunity to comment on a worldwide issue in Sport; and instead, they ‘punted on 4th and inches’.

To me, this case creates a precedent that the price to pay for gaining a competitive advantage through the use of video technology is very low, and all that is required to absolve staff members is the use of a third-party service not associated with professional or international level organizations. As I said in the first article, the Court of Arbitration for Sport was handed the opportunity to create a reasoned sanctioning system for breaches of the principles of fair play, specifically the use of technology to cheat or gain a competitive advantage, but they squandered it.