Hisham Nasr v. International Handball Federation (IHF)

At a glance

Parties

Hisham Nasr (Egypt) v. International Handball Federation (IHF)

Case no.

CAS 2023/A/9364

Forum and rules

Court of Arbitration for Sport, appeal arbitration under the Code of Sports-related Arbitration; Article 22 of the IHF Statutes

Tribunal

Jacob C. Jørgensen (President), Ulrich Haas, Carine Dupeyron

Sector

Handball; sports governance and ethics

Outcome

Appeal upheld (23 October 2023). The IHF Arbitration Tribunal decision and the one-year ethics ban were annulled and treated as void ab initio.

Amount

The IHF Arbitration Tribunal fee of CHF 10,000 was cancelled and is to be refunded. The appellant also claimed CHF 5,000 in defence costs and said he had spent more than EUR 50,000 on legal costs; his other claims were dismissed.

The dispute

Hisham Nasr was a member of the Board of Directors of the Egyptian Handball Federation (EHF) and was elected its President at the electoral Congress of 18 November 2017. The Egyptian Sports Settlement and Arbitration Center annulled that election because of irregularities. The EHF, represented by Mr Nasr, then made a Waiver Agreement with the losing candidate on 8 May 2018, under which the election results were kept. In 2021, after the Egyptian Olympic Committee reported governance failures for 2017–2020, the IHF appointed an Interim Committee to run the EHF. The IHF Ethics Commission then banned Mr Nasr and eight other EHF officials from all handball activity for one year for breaching the integrity and good governance principles in Article 5 of the IHF Ethics Code. The IHF Arbitration Tribunal confirmed the ban. On appeal to CAS, Mr Nasr relied on nulla poena sine lege, res judicata (based on the Waiver Agreement) and ne bis in idem, and argued that the IHF had not proved he was personally responsible for any of the alleged violations.

Key holdings

1. Articles 5 and 9 of the IHF Ethics Code are clear enough to serve as a legal basis for a sanction. Broad ethics and integrity standards do not breach the nulla poena sine lege principle. ¶¶ 129–130
2. The IHF bears the burden of proof. Under Article 3.3 of the IOC Code of Ethics, which forms part of the IHF Ethics Code, the standard of proof is the balance of probabilities, which is lower than comfortable satisfaction. ¶¶ 135–141
3. The Waiver Agreement has no res judicata effect, because it is a private agreement and was never embodied in an award. There was no breach of ne bis in idem either: appointing the Interim Committee was not a sanction on the appellant, so the triple identity test was not met. ¶¶ 143–148
4. The IHF did not prove that the appellant was personally involved in the irregularities at the 2017 Congress or in the adoption of the 2017 EHF Statutes. Those Statutes were adopted, approved and published before his election. In the absence of evidence of personal misconduct, a disciplinary sanction is illicit and void. ¶¶ 155–167
5. No breach in 2019. The 2019 amendments to the EHF Statutes were sent to the IHF 'for assessment', as the IHF Statutes then in force required. The IHF never objected, and its long delay in acting was inconsistent with venire contra factum proprium. ¶¶ 169–177
6. No breach in 2020. Article 3 of the Egyptian Sports Act ('should be approved') does not make approval a condition of validity, and the IHF Ethics Code is not meant to enforce Egyptian law. COVID-19 restrictions plausibly prevented the election of a Vice-President. The appellant was therefore not shown to be responsible for the board vacancies. ¶¶ 178–190
7. The Appealed Decision is annulled in its entirety and the sanction is void ab initio. The CHF 10,000 IHF Arbitration Tribunal fee is cancelled and refunded, and all other claims are dismissed. ¶¶ 193–198; operative part

Procedural history

1. 18 March 2018The Egyptian Sports Settlement and Arbitration Center annulled the results of the 2017 EHF elections.
2. 8 May 2018The EHF and Mr Al-Nahhas concluded the Waiver Agreement, which kept the election results in place.
3. 15 March 2021The IHF Executive Committee appointed an Interim Committee to manage the EHF.
4. 6 April 2022The IHF Ethics Commission imposed a one-year ban on the appellant and eight other EHF officials.
5. 15 December 2022The IHF Arbitration Tribunal dismissed the appellant's appeal.
6. 3 January 2023The appellant filed his Statement of Appeal with CAS.
7. 20 March 2023The Panel was constituted.
8. 26 June 2023Hearing held in Lausanne.
9. 23 October 2023Award: appeal upheld, the IHF decision annulled and the sanction declared void.

Tribunal, counsel and experts

Decided by

• Jacob C. Jørgensen President — appointed by the institution
• Ulrich Haas Co-arbitrator — appointed by the claimant
• Carine Dupeyron Co-arbitrator — appointed by the respondent

For the claimant

Sami Boussarsar

For the respondent

Nicolas Zbinden · Anton Sotir

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Keywords

• handball
• Egyptian Handball Federation
• IHF Ethics Code
• good governance
• integrity
• nulla poena sine lege
• burden of proof
• balance of probabilities
• res judicata
• waiver agreement
• ne bis in idem
• triple identity test
• venire contra factum proprium
• Egyptian Sports Act
• interim committee
• suspension
• election irregularities
• CAS appeal

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