CAS Case Digest · Verified against the full award text

CAS 2013/A/3139 — Fenerbahçe SK v. UEFA

"Fenerbahçe v. UEFA (Stay Order)" · CAS dismissed Fenerbahçe's request to stay a deferred UEFA exclusion sanction for lack of irreparable harm.

What happened in Fenerbahçe v. UEFA (Stay Order)

Following fireworks incidents during the 2012/2013 UEFA Europa League match between Fenerbahçe SK and FC BATE Borisov on 21 February 2013, the UEFA Control and Disciplinary Body on 27 February 2013 ordered Fenerbahçe to play its next UEFA home match behind closed doors, imposed a deferred exclusion from the next UEFA club competition for which it would otherwise qualify (suspended for a two-year probationary period), and fined the club €60,000. The UEFA Appeals Body upheld this decision on 11 March 2013. Fenerbahçe appealed to CAS on 4 April 2013 and simultaneously sought a stay of the deferred exclusion sanction. The Deputy President of the CAS Appeals Arbitration Division dismissed the stay request on 3 May 2013, finding that the deferred exclusion was purely hypothetical — it could only be triggered by a future disciplinary incident — and therefore could not constitute irreparable harm. The Deputy President further noted that any reputational or financial loss alleged by Fenerbahçe, even if it were to materialise, would be financially compensable and thus not irreparable. Because the three criteria for provisional measures are cumulative and irreparable harm was absent, the other criteria were not examined. The case matters as a clear application of the CAS three-part provisional-measures test to deferred/conditional disciplinary sanctions.

Procedural history of CAS 2013/A/3139

On 27 February 2013, the UEFA Control and Disciplinary Body sanctioned Fenerbahçe SK following the 21 February 2013 Europa League match against FC BATE Borisov: it ordered one behind-closed-doors home match (against FC Viktoria Plzeň on 14 March 2013), a deferred exclusion from the next UEFA club competition for which the club would otherwise qualify (suspended for a two-year probationary period), and a €60,000 fine. Fenerbahçe appealed; the UEFA Appeals Body rejected the appeal and upheld the decision on 11 March 2013. The decision was notified to Fenerbahçe on 28 March 2013. On 4 April 2013, Fenerbahçe filed a statement of appeal with CAS and requested a stay of the deferred exclusion sanction. On 17 April 2013, Fenerbahçe filed its appeal brief and asked that its factual arguments be considered for the stay. UEFA filed its observations opposing the stay on 25 April 2013. The Deputy President ruled on the stay request on 3 May 2013.

Key holdings in CAS 2013/A/3139

• A deferred disciplinary sanction contingent on a future hypothetical disciplinary incident cannot constitute irreparable harm for the purposes of a CAS stay application.
• Any harm that can be financially compensated does not qualify as irreparable harm under established CAS jurisprudence.
• The three criteria for provisional measures — irreparable harm, likelihood of success on the merits, and balance of interests — are cumulative, so failure on any one criterion is sufficient to dismiss the application.
• CAS has prima facie jurisdiction over appeals against UEFA decisions by virtue of Article 62 of the UEFA Statutes.
• A CAS stay order is a procedural order, not an award, and may not be challenged in court pursuant to Article 190 of the Swiss Private International Law Act.

How the CAS panel reasoned

The Deputy President applied the well-established three-part CAS test for provisional measures: irreparable harm, likelihood of success on the merits, and balance of interests. The analysis focused exclusively on irreparable harm because the criteria are cumulative and the absence of any one is dispositive. Fenerbahçe argued that without a stay, a potential future disciplinary incident — even one outside its control — could trigger the deferred exclusion, causing massive reputational and financial damage. The Deputy President rejected this reasoning on two independent grounds. First, the sanction was purely hypothetical: it could only be activated by a future disciplinary finding against the club, an event that had not occurred and might never occur. A speculative future harm cannot ground a stay. Second, even assuming such harm could materialise, reputational and financial losses are by their nature financially compensable and therefore not irreparable under constant CAS jurisprudence. Having found no irreparable harm, the Deputy President declined to address likelihood of success or balance of interests, citing procedural economy. Costs were reserved for the final award.

Why Fenerbahçe v. UEFA (Stay Order) matters in CAS jurisprudence

This order reinforces that deferred or conditional UEFA disciplinary sanctions — those triggered only by a future hypothetical event — cannot satisfy the irreparable harm threshold required for a CAS stay. It also reaffirms that financially compensable losses, including reputational damage, are categorically excluded from the irreparable harm analysis, and confirms the strictly cumulative nature of the three-part provisional-measures test in CAS proceedings.

Cases cited in this award

CAS 2003/O/486, Fulham FC v. Olympic Lyonnais CAS 2001/A/329, Gibraltar Badminton Association v. International Badminton Federation CAS 2001/A/324, Addo and van Nistelrooij v. UEFA CAS 2007/A/1317, Fogarty & Schoppe v. BWF CAS 2010/A/2071, Irish Football Association v. Football Association of Ireland, Daniel Kearns and FIFA CAS 2007/A/1403, Real Racing Club de Santander SAD c. Club Estudiantes de la Plata

Frequently asked questions about Fenerbahçe v. UEFA (Stay Order)

Why did CAS refuse to stay Fenerbahçe's UEFA exclusion sanction in CAS 2013/A/3139?

The Deputy President found that the deferred exclusion was purely hypothetical because it could only be triggered by a future disciplinary incident for which Fenerbahçe would be held liable — an event that had not yet occurred. A speculative future harm cannot constitute irreparable harm under CAS jurisprudence. Additionally, any reputational or financial loss alleged by the club was held to be financially compensable and therefore not irreparable.

What were the original UEFA sanctions against Fenerbahçe following the BATE Borisov match?

Following the 21 February 2013 Europa League match against FC BATE Borisov, during which fireworks from outside the stadium landed inside and interrupted the game, the UEFA Control and Disciplinary Body on 27 February 2013 ordered Fenerbahçe to play its next UEFA home match (against FC Viktoria Plzeň on 14 March 2013) behind closed doors, imposed a deferred exclusion from the next UEFA club competition for which it would otherwise qualify suspended for a two-year probationary period, and fined the club €60,000.

Is a CAS stay order in a case like Fenerbahçe v. UEFA subject to challenge before Swiss courts?

No. The Deputy President expressly stated in the order that the decision is a procedural order and 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.

What is the three-part test CAS applies when deciding whether to grant a stay, as applied in the Fenerbahçe case?

According to the order, CAS will grant provisional relief only if: (1) the applicant would suffer irreparable harm if relief were not granted, (2) the applicant has a likelihood of success on the merits of the appeal, and (3) the applicant's interests outweigh those of the other party. The Deputy President confirmed these criteria are cumulative, citing cases including CAS 2003/O/486 and CAS 2010/A/2071, meaning failure on any single criterion is sufficient to dismiss the application.

Topics: Doping, ethics & governance at CAS

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