Novica Toncev v. Football Association of Serbia (FAS)

At a glance

Parties

Novica Toncev (Serbia) v. Football Association of Serbia (FAS)

Case no.

CAS 2022/A/8694

Forum and rules

Court of Arbitration for Sport, appeals arbitration under the CAS Code (2021 edition)

Treaty

None. CAS jurisdiction rests on Article 92 FAS Statutes

Tribunal

Hendrik Willem Kesler (President), Ulrich Haas, Patrick Lafranchi

Sector

Football; disciplinary sanctions

Outcome

Appeal dismissed. The FAS Appeals Committee decision confirming a nine-month ban on performance of duties was upheld (operative part 2 August 2022; reasoned award 20 April 2023).

Amount

No money claim. Sanction: ban on performance of duties for 9 months. The cost provisions of the award are redacted in the published text.

The dispute

Novica Toncev is a Minister in the Serbian Government and a member of the FAS Executive Committee. His son, Stanislav Toncev, is President of FC Radnik Surdulica. At half time of the Serbian Super League match between FC Radnik and FC TSC on 24 November 2021, father and son entered the referees' dressing room and questioned the referees' decisions, including a red card shown to a FC Radnik player. The FAS Disciplinary Committee found that he had committed unsporting behaviour under Article 54 of the FAS Disciplinary Code and banned him from performing duties for nine months. The FAS Appeals Committee confirmed the ban. Before CAS, Toncev argued that the FAS bodies lacked independence under Article 6(1) ECHR, that the procedure was flawed, that the VAR audio recordings were not authentic, that the standard of proof was "beyond reasonable doubt", that his polite conversation was not an offence, and that the ban was disproportionate. The FAS replied that any procedural defects were cured by the CAS de novo review, that the VAR recordings and the referees' reports were reliable, and that the sanction was proportionate given his position.

Key holdings

1. Under Article 6(1) ECHR a party is entitled to only one structurally independent adjudicatory body. CAS meets that requirement, so the arguments on the lack of structural independence of the FAS bodies were dismissed from the outset. Other alleged defects, such as the passive stance of committee members, the lack of a disciplinary inspector and inadequate reasoning, were cured by the de novo appeal. There is no minimum level of engagement for members of a disciplinary body. ¶¶ 84–90
2. The FAS Disciplinary Committee was validly constituted: four members decided, and Article 70 FAS Statutes requires at least three for a decision. The Committee could open proceedings ex officio under Article 127 of the Disciplinary Code, and the charge was not limited to "entering a restricted area" as described in the Disciplinary Report. Challenges to the Provisional Suspension were out of time under the 10-day limit in Article 92 FAS Statutes. ¶¶ 80–82, 92–100
3. The VAR recordings are admissible evidence under Article 132 of the FAS Disciplinary Code. Their authenticity was proven by the referees' unanimous confirmation. The applicable standard of proof is comfortable satisfaction, having in mind the seriousness of the allegation; the result would have been the same under the standard of beyond reasonable doubt. ¶¶ 109–117
4. Under Article 54, protesting at referees' decisions, in whatever manner and context, is unsporting behaviour; politeness goes only to the sanction. Toncev protested in the referees' dressing room at half time and insinuated that the referees were biased against him. In the Panel's view, the public would likely see this as an attempt to influence the second half in favour of FC Radnik, which is conduct "that may harm the reputation of the sport of football". ¶¶ 120–136
5. A CAS panel has full de novo power to review whether a sanction is proportionate. The "evidently and grossly disproportionate" test in earlier CAS cases only means that a panel should not lightly tinker with a well-reasoned sanction. ¶¶ 142–144
6. The nine-month ban is proportionate. Aggravating factors: the harm to the reputation of football, his status as a Minister and FAS Executive Committee member, his lack of remorse, and his entry into the referees' dressing room. Mitigating factors: the referees did not feel threatened and there was no physical contact. Earlier, more lenient FAS decisions were distinguished. The longer ban for him than the six-month ban for his son was justified because he held the higher status and questioned the referees' integrity more explicitly. ¶¶ 145–163

Procedural history

1. 24 November 2021Super League match between FC Radnik and FC TSC. At half time, Toncev and his son enter the referees' dressing room.
2. 2 December 2021The FAS Disciplinary Committee opens proceedings under Article 54 and imposes a provisional suspension.
3. 13 January 2022First Instance Decision: ban on performance of duties for nine months, effective from 3 December 2021.
4. 14 February 2022The FAS Appeals Committee dismisses the appeal. The decision with grounds is communicated on 18 February 2022.
5. 28 February 2022Statement of Appeal filed with CAS, with an application for a stay of execution.
6. 8 April 2022The President of the CAS Appeals Arbitration Division rejects the application for a stay.
7. 23 May 2022Panel constituted.
8. 13 July 2022Joint hearing in Lausanne with CAS 2022/A/8695 (Stanislav Toncev v. FAS).
9. 2 August 2022Operative part of the award: appeal dismissed and the FAS decision confirmed.
10. 20 April 2023Reasoned award issued.

Tribunal, counsel and experts

Decided by

• Hendrik Willem Kesler President, Panel — appointed by the institution
• Ulrich Haas Co-arbitrator, Panel — appointed by the claimant
• Patrick Lafranchi Co-arbitrator, Panel — appointed by the respondent

For the claimant

Mico Petkovic · Ivana Boskovic

For the respondent

Zoran Damjanovic · Marco del Fabro · Ksenija Z. Damjanovic

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Keywords

• football
• unsporting behaviour
• Article 54 FAS Disciplinary Code
• referees' dressing room
• harming the reputation of football
• VAR recordings
• Article 6(1) ECHR
• structural independence
• Ali Riza
• de novo review
• curing procedural defects
• comfortable satisfaction
• standard of proof
• proportionality of sanction
• ban on performance of duties
• FC Radnik Surdulica
• provisional suspension
• Serbia

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