CAS Case Digest · Verified against the full award text

CAS 2011/A/2551 — Fenerbahçe SK v. UEFA & Turkish Football Federation (TFF)

"Fenerbahçe" · CAS rejected Fenerbahçe's second request for provisional measures seeking reinstatement to the 2011/12 UEFA Champions League.

What happened in Fenerbahçe

Fenerbahçe SK was excluded from the 2011/12 UEFA Champions League following match-fixing allegations in Turkey. The TFF withdrew the club and UEFA's Emergency Panel replaced it with Trabzonspor. Fenerbahçe filed a CAS appeal on 1 September 2011 seeking damages provisionally valued at €42,753,000 plus additional amounts to be fixed ex aequo et bono, and also requested provisional measures for immediate reinstatement. The Panel's First Order of 9 September 2011 (issued 20 September 2011) refused the first provisional measures request. On 19 October 2011, Fenerbahçe filed a second request, citing two alleged 'new facts': a Tribunal Cantonal Vaudois order of 13 September 2011 requiring UEFA to reintegrate FC Sion into the Europa League, and UEFA's 17 October 2011 public statement outlining reintegration scenarios for FC Sion. The Panel rejected the second request, finding that even if these constituted new facts, they did not change the decisive obstacle: Trabzonspor was not a party to the proceedings and would need to be heard on any measure affecting its position. The Panel also noted that Fenerbahçe's substantive prayers for relief remained purely financial in nature. Costs were reserved for the final award. This order matters because it illustrates CAS's strict approach to joinder of affected third parties in provisional measures proceedings.

Procedural history of CAS 2011/A/2551

Fenerbahçe filed its Statement of Appeal with CAS on 1 September 2011, claiming damages provisionally valued at €45,000,000, later revised to €42,753,000 plus ex aequo et bono amounts, arising from exclusion from the 2011/12 UEFA Champions League. The Appeal Brief was filed on 11 September 2011 and completed on 23 September 2011. The Panel issued its First Order on 20 September 2011, rejecting the first request for provisional measures. On 19 October 2011, Fenerbahçe filed a second request for provisional measures under Article R37 of the CAS Code, again seeking immediate reinstatement to the 2011/12 UCL group stage, relying on two alleged new facts: the Tribunal Cantonal Vaudois order of 13 September 2011 in the FC Sion matter and UEFA's public statement of 17 October 2011. UEFA and TFF filed their responses on 26 October 2011. The Panel issued this order on 3 November 2011.

Key holdings in CAS 2011/A/2551

• The Panel retains prima facie jurisdiction to consider provisional measures requests, reserving definitive jurisdiction for the final award.
• A second request for provisional measures is only entertainable if genuine new facts are presented that were not available at the time of the first order.
• Even assuming the FC Sion Tribunal Cantonal Vaudois decision and the UEFA statement of 17 October 2011 constituted new facts, they did not alter the decisive obstacle that Trabzonspor was not a party to the proceedings and would need to be heard on any measure affecting its situation.
• Under Article R41.2 of the CAS Code, joining a third party as respondent is an option for respondents, not appellants; Fenerbahçe could not compel Trabzonspor's joinder and was out of time to commence a fresh appeal.
• Fenerbahçe's substantive prayers for relief, as amended in the final Appeal Brief, remained purely financial in nature, which under Swiss and CAS jurisprudence does not constitute irreparable harm justifying provisional measures.

How the CAS panel reasoned

The Panel structured its analysis around two preliminary questions before even reaching the standard triple test for provisional measures: first, whether genuine new facts existed; second, whether those new facts had any bearing on Fenerbahçe's requests. On the first question, the Panel acknowledged the Tribunal Cantonal Vaudois order in the FC Sion matter and the UEFA statement of 17 October 2011 as potentially new facts but declined to resolve the point definitively. On the second question, the Panel identified two insurmountable obstacles. First, Trabzonspor remained absent from the proceedings and any measure reinstating Fenerbahçe would directly affect Trabzonspor's position in the 2011/12 UCL group stage; natural justice required that Trabzonspor be heard. The Panel rejected UEFA's argument that Fenerbahçe should have joined Trabzonspor, clarifying that Article R41.2 of the Code permits only respondents to join third parties, and Fenerbahçe was time-barred from filing a fresh appeal. The TFF had no obligation to notify Trabzonspor of its right to intervene. Second, the Panel reaffirmed that Fenerbahçe's amended prayers for relief were solely financial, and purely financial damages are never considered irreparable harm under Swiss and CAS jurisprudence. The FC Sion parallel was distinguished on its facts. The Panel concluded it could not entertain the request and rejected it.

Why Fenerbahçe matters in CAS jurisprudence

This order reinforces the CAS principle that provisional measures affecting absent third parties cannot be granted without those parties being heard, and clarifies that under Article R41.2 of the CAS Code only respondents — not appellants — may join additional parties, creating a structural limitation on appellants seeking reinstatement measures where a replacement club has not intervened. It also reaffirms that purely financial claims do not satisfy the irreparable harm criterion for provisional relief.

Frequently asked questions about Fenerbahçe

Why did CAS reject Fenerbahçe's second request for provisional measures to rejoin the 2011/12 Champions League?

The Panel found that even if the FC Sion Tribunal Cantonal Vaudois order and UEFA's 17 October 2011 statement were new facts, they did not remove the decisive obstacle: Trabzonspor was not a party to the proceedings and would need to be heard on any measure affecting its position. Additionally, Fenerbahçe's substantive claims remained purely financial, which does not constitute irreparable harm under Swiss and CAS jurisprudence.

Could Fenerbahçe have joined Trabzonspor as a party to the CAS arbitration?

No. The Panel clarified that under Article R41.2 of the CAS Code, joining a third party is an option available only to respondents, not appellants. Fenerbahçe also could not commence a fresh appeal including Trabzonspor because it was already out of the applicable time limits after the First Order was issued.

How much damages did Fenerbahçe claim in the underlying CAS arbitration?

Fenerbahçe initially valued its damages provisionally at €45,000,000 in its Statement of Appeal of 1 September 2011, later revising this to €42,753,000 plus an additional amount to be fixed ex aequo et bono by the Panel for losses related to player transfer issues, as stated in its Appeal Brief of 11 September 2011.

Is the CAS order on provisional measures in the Fenerbahçe case challengeable in court?

No. The Panel expressly stated in section 8.1 of the order that this decision is a procedural order, not an award, and as a result it may not be challenged in court pursuant to Article 190 of the Swiss Private International Law Act.

Topics: Doping, ethics & governance at CAS

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