Esperance Sportive de Tunis v. Confédération Africaine de Football (CAF)

At a glance

Parties

Espérance Sportive de Tunis (Tunisia) v. Confédération Africaine de Football (CAF)

Case no.

CAS 2023/A/9675

Forum and rules

Court of Arbitration for Sport, appeal procedure under the Code of Sports-related Arbitration; CAF Statutes Article 48

Treaty

CAF Statutes, Article 48 (appeal to CAS)

Tribunal

Carmen Núñez-Lagos (President), Mathieu Maisonneuve, Michele Bernasconi

Sector

Football; disciplinary sanctions for supporter misconduct

Outcome

Appeal dismissed. The CAF Appeal Board decision of 10 May 2023 was confirmed (operative part 26 September 2023; reasoned award 18 March 2024).

Amount

Sanction confirmed: four CAF interclub home matches behind closed doors (two suspended for 12 months) and a fine of USD 300,000, the maximum under Article 91 of the CAF Disciplinary Code.

The dispute

Espérance Sportive de Tunis (EST) hosted JS Kabylie at the Radès Olympic Stadium in Tunis on 29 April 2023, in the return leg of the 2022-2023 CAF Champions League quarter-finals. At half-time, EST supporters clashed with the police. They threw stones, bottles, pieces of iron and torn-out seats, set off flares and firecrackers, used a chainsaw to break the vomitory door, and started fires. The police used tear gas and the second half began 40 minutes and 47 seconds late. The CAF Disciplinary Board found a "total failure" of organisation and security. It ordered EST to play four CAF interclub home matches behind closed doors, two of them suspended, with automatic exclusion from the next CAF interclub competition if it reoffended within 12 months, and fined it USD 300,000. The CAF Appeal Board upheld that decision. Before CAS, EST argued that "total failure" was the wrong characterisation, that the decision gave no reasons, and that the sanctions were disproportionate, including when compared with the sanction on Raja Casablanca for an incident in which a supporter died. CAF replied that the decision was reasoned, that the facts were correctly characterised, and that the sanctions were proportionate given EST's repeat offences.

Key holdings

1. Under Articles 83 and 84.1 of the CAF Disciplinary Code, the host club has an obligation of result for order and security and is strictly liable for incidents even without fault. It can escape liability only for force majeure or, under certain conditions, the act of a third party. Supporters are not third parties for this purpose. The rule does not breach the principle of personal liability (nulla poena sine culpa): the club is sanctioned for failing in its own security obligation. ¶¶ 96–103
2. The facts in the match officials' reports are presumed accurate (Article 32), and the videos confirmed them. EST did not contest them. Leaving a chainsaw within reach of supporters is the club's direct responsibility. ¶¶ 105–113
3. The Code does not define "total failure". Organisation and security fail once the safety of people is compromised and bodily harm is narrowly avoided, so the characterisation was admissible. Had the match not resumed, an even harsher sanction, possibly exclusion, would have been warranted. ¶¶ 111–117
4. The Appeal Board's decision was reasoned. It restated the facts, characterised them in law and linked them to Article 83, so it is not void for lack of reasons. ¶¶ 119–121, 126
5. EST had been sanctioned twice before for similar incidents: on 8 September 2021 (four closed-door matches, two suspended, and USD 60,000) and on 28 March 2022 (suspension lifted and USD 20,000). This allows a third and more serious incident to be sanctioned more severely. ¶¶ 123–125
6. The Panel left open how intensively CAS should review proportionality, because the sanctions were neither manifestly nor simply disproportionate. Combining sanctions under Articles 84 and 91 is permitted. EST brought no evidence to support its comparison with the Raja Casablanca case. ¶¶ 131–144
7. The appeal is dismissed and the CAF Appeal Board decision of 10 May 2023 is confirmed. The published operative part omits points 3 and 4, so the costs ruling is not shown. Operative part

Procedural history

1. 29 April 2023EST v. JS Kabylie match at the Radès Olympic Stadium. Supporter violence delays the second half by about 40 minutes.
2. 4 May 2023The CAF Disciplinary Board orders four closed-door home matches (two suspended) and a fine of USD 300,000.
3. 10 May 2023The CAF Appeal Board rejects EST's appeal and upholds the sanctions. The decision is notified on 11 May 2023.
4. 21 May 2023EST files its statement of appeal with CAS.
5. 27 July 2023Carmen Núñez-Lagos is appointed President of the Panel, completing the Panel.
6. 11 September 2023Hearing held by videoconference.
7. 26 September 2023Operative part of the award issued: appeal dismissed.
8. 18 March 2024Reasoned award issued.

Tribunal, counsel and experts

Decided by

• Carmen Núñez-Lagos President, Panel — appointed by the institution (appointed by the President of the CAS Appeals Arbitration Division)
• Mathieu Maisonneuve Co-arbitrator, Panel — appointed by the claimant
• Michele A.R. Bernasconi Co-arbitrator, Panel — appointed by the respondent

For the claimant

Riadh Touiti · Walid Ben Salah

For the respondent

CAF Legal Affairs

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Keywords

• strict liability
• supporter misconduct
• crowd violence
• CAF Disciplinary Code Article 83
• total failure of security
• closed-door matches
• fine
• proportionality
• recidivism
• duty to state reasons
• CAF Champions League
• JS Kabylie
• Radès stadium
• chainsaw
• nulla poena sine culpa
• CAS 2002/A/423
• football
• Espérance de Tunis

Summary generated with AI from the published documents — refer to the award for the authoritative text.