Date of Notification of a Decision by Email

On 2 September 2021, the Hungarian and English A national teams played a match in the “Preliminary Competition of [the] FIFA World Cup Qatar 2022, European Zone” (Match).
On 3 September 2021, the FIFA Disciplinary Committee (FIFA DC) opened disciplinary proceedings against HFF for potential breaches of Articles 13 and 16 of the FIFA Disciplinary Code - Ed 2019 edition (FDC) for spectators throwing objects onto the pitch, lighting sparklers, locking the stairways and making racists chants and slurs.
On 20 September 2021, the FIFA DC passed a decision against HFF and found them “liable for the discriminatory behaviour of its supporters and the throwing of objects, lighting of fireworks and blocked stairways.” The FIFA DC sanctioned HFF with a CHF 200,000 (approx. EUR 208,000) fine and two home matches behind closed doors in the same competition, with the second match being suspended on a probationary period for two years.
On 13 October 2021, HFF filed an appeal against the FIFA DC’s decision with the FIFA Appeal Committee (FIFA AC).
On 11 November 2021, FIFA AC issued the operative part of its decision (Appealed Decision), which confirmed the previous instance decision.
On 16 December 2021, the FIFA Appeal Committee emailed the Appealed Decision’s grounds to HFF at 8:40 p.m.
On 4 January 2022, HFF sent CAS a letter dated 3 January 2022, that it “intend[ed] to lodge an appeal”.
On 7 January 2022, HFF filed a Statement of Appeal pursuant to Article R47 of the Code.

FIFA requested the bifurcation of the proceedings immediately after it was notified of the appeal.
FIFA argued that HFF filed its appeal outside the 21-day deadline per the FIFA Statutes.
The Panel had to answer three preliminary questions concerning (i) FIFA’s request for bifurcation, (ii) the submission of new documents and (iii) the date of the HFF’s appeal’s filing.
As to the request for bifurcation, the Panel highlighted that the question to bifurcate proceedings to decide on a preliminary question is a procedural issue governed by Article R49 of the CAS Code of Sports-related Arbitration (Code), which previous CAS panels have found to be a sufficient legal basis (1).
The Panel noted that such practice is widely recognized in CAS jurisprudence as long as it is requested before any defense on the merits(2). In addition, the Panel considered that (i) after FIFA expressed its intention to file a Request for Bifurcation and CAS invited HFF to comment on the next steps of the procedure, HFF directly filed a response to FIFA’s Request for Bifurcation; (ii) then, the parties had a second exchange of submissions to develop their arguments; and (iii) the Panel held a preliminary hearing strictly limited to the Request for Bifurcation and the admissibility of the appeal. In sum, the Panel noted that HFF filed various submissions and took part in the preliminary hearing to clarify the admissibility of its appeal.
Therefore, the Panel confirmed its decision to bifurcate the proceedings in line with the parties’ procedural behavior.
As to the admissibility of new evidence, in view of Article R56 of the Code, the Panel analyzed whether exceptional circumstances existed concerning HFF’s submission of a FIFA press release during the hearing on admissibility(3).
In this respect, the Panel referred to legal writing and jurisprudence whereby exceptional circumstances exist when new evidence becomes available to the parties after the time limit for filing the written submissions has passed(4). The Panel added that the Swiss Federal Tribunal’s (SFT) practice, also endorsed by CAS, “exempts the parties from proving their allegations with respect to well-known facts … namely facts that are known to the general public or to the judge/arbitrator and that can easily be consulted by anyone”, for example when such facts are based on “publications on the internet”, which “can be identified as official (Federal Statistical Office, commercial register entry, currency rates, etc.), the source and content of which is not subject to controversy.”(5)
Therefore, the Panel concluded that, since FIFA’s press release was freely available online and it undisputedly came from FIFA(6), such evidence constitutes a well-known fact that was exempted from the burden of proof, and a three-day delay in submitting the evidence did not prejudice FIFA, who was already aware of the evidence and “had the opportunity to make a written determination on it.”

As to the final preliminary matter concerning the appeal date, HFF argued that its letter to CAS dated 3 January 2022, submitted on 4 January 2022, should be considered its Statement of Appeal and not the 7 January 2022 document entitled “Statement of Appeal”. So, the Panel had to determine the nature of the 3 January 2022 letter.
In its analysis, the Panel referred to the contents of a Statement of Appeal as detailed in Article 48 of the Code and noted that HFF’s 3 January 2022 letter did not meet any of the conditions. While the Panel noted the CAS practice to grant an additional deadline to an appellant to rectify possible mistakes or complete an incomplete Statement of Appeal, this practice does not allow an appellant to turn a simple declaration into a Statement of Appeal to safeguard the applicable time limit(7). Therefore, the Panel determined that HFF filed its appeal on 7 January 2022.
After answering the above preliminary questions, the Panel considered the appeal’s admissibility by determining the provisions related to the deadline to file an appeal and the Appealed Decision’s date of notification.
Starting with the provisions related to the deadline to file an appeal, HFF argued that the calculation of the deadline per Article R49 of the Code had two exceptions under Articles 34.1 and 34.2 FDC and added that, in any case, per Article 75 of the Swiss Civil Code (CC), the 21-day time limit does not comply with Swiss Law(8).
First, the Panel dismissed the application of Article 75 CC, stating that it does not conflict with Article R49 of the Code because it prevails over national law in international arbitration proceedings. This principle stems from the parties’ autonomy to choose the law applicable to their dispute in arbitration proceedings, which includes the Code as the procedural rule chosen by the parties in CAS arbitration. This is also the reason why Article R58 of the Code provides that the regulations of the sports federation apply primarily and the national legal systems, e.g. Swiss Law, apply subsidiarily. Practically speaking, such an approach is pragmatic “since it avoids that the length of the time limit for appeal to CAS varies continuously according to the particular circumstances of each case and the relevant national law”(9).
Interestingly, the above conclusion was reached by the majority of the Panel, which believed that HFF did not raise sufficient arguments to “thwart this interpretation”. Nonetheless, the majority of the Panel supported its position by referring to the SFT judgments recognizing the primacy of sports regulations in arbitration when opposed to the longer time limit established by Swiss Law, circumstances of each case and the relevant national law”(10).

Next, the Panel dismissed HFF’s arguments concerning Articles 34.1 and 34.2 FDC, highlighting that such suspension offered by the FDC applies only to FIFA’s internal procedures rather than to CAS procedures and, in any case, “the lack of suspension of time limits in CAS proceedings” and “the need for the highest sports justice to function efficiently” “has long been recognized by legal writing based on Article R32 of the CAS Code.” The Panel also stated that, even if the opposite were true and Article R34.2 FDC applied to the present dispute, it would be disregarded because the FIFA Statutes (which provide for a 21-day time limit) prevail over other potentially contradictory lower-level procedural rules.
In light of the above, the Panel concluded that the 21-day time limit “provided for in Articles R49 of the CAS Code and 57 (1) of the FIFA Statutes is neither extended by the application of Swiss civil law nor suspended by way of the recess provided for in the FDC or any other similar procedural provisions.”
Moving on, the Panel discussed the Appealed Decision’s date of notification and entry into HFF’s sphere of control by directly answering to HFF’s relevant arguments, i.e. (i) the date of HFF’s receipt of the Appealed Decision and (ii) the date of the Appealed Decision’s notification.
At the outset, the Panel established that the applicable standard of proof was comfortable satisfaction, considering it dealt with a disciplinary case and FIFA had the burden of proof that it duly communicated the Appealed Decision.
As to HFF’s receipt of the Appealed Decisions, the Panel emphasized that a decision is considered to be received or notified when it enters the sphere of control of the recipient, which is when the recipient can become acquainted with the content of a decision(11).
Specifically concerning “mailboxes” (i.e. email inboxes), the Panel noted that quasi-immediacy of email communications meant that a decision enters into the recipient’s sphere of control when “the recipient indicated that it could be reached via such email address” so “[o]nce a message leaves the sender’s sphere of control, it is in principle deemed to be received by the recipient.”
Importantly, the Panel clarified that a “copy of the document generated by Microsoft … is sufficient to prove that the delivery of the message is complete, if it contains the same references as the email sending the relevant decision and is not contradicted by other solid evidence on file demonstrating that this email was delivered to the recipient’s server with an unusual delay”(12).
The Panel explained that any other interpretation would impose an excessive burden on the sender having to provide a read-receipt or proof of delivery since it would make it too easy for parties acting in bad faith to delay proceedings indefinitely by not setting up such an electronic system or refraining from clicking on the proposed read-receipt (or the email itself).
In determining when the Appealed Decision entered into HFF’s sphere of control, the Panel considered the following: (i) FIFA sent the Appealed Decision to an email used on several occasions by both parties before; (ii) FIFA provided a document stating that “[d]elivery to these recipients …is complete” generated by Microsoft Outlook; (iii) HFF did not provide any alternative evidence such as a screenshot of the respective email inbox indicated the time when the email was delivered; (iv) HFF’s witnesses claimed they do not access their emails outside of office hours - 8 a.m. to 4:30 p.m. - but then stated they read the email at 6:30 a.m.; (v) and in its 3 January letter, HFF referred to the Appealed Decision as “submitted to us on the 16/12/2021”.

Therefore, the Panel concluded that HFF received the Appealed Decision at or immediately after 8:40 p.m. on 16 December 2021.
Finally, as to the Appealed Decision’s date of notification, the Panel established that the Appellant’s request to differentiate between “receipt” and “notification” was artificial. Thus, the Panel dismissed HFF’s argument that notification was complete on 17 December 2021, when HFF opened the Appealed Decision because it would undermine the FIFA Statutes, which intend to “regulate proceedings in a uniform manner and on a worldwide scale.”
The Panel considered that HFF was (i) “well aware of the applicable FIFA regulations, particularly with regard to the procedure for notifying the grounds of a decision by email, particularly with regard to the procedure for notifying the grounds of a decision by email”; (ii) “knew that its case was pending”; (iii) and knew that “the FIFA Appeal Committee’s decision in this regard was imminent.” In light of these facts, HFF had an increased “inquiry obligation”.
In any case, according to the Panel, FIFA cannot be expected to communicate decisions strictly within office hours because it deals with “hundreds of international cases in many different time zones”, and requiring “otherwise would create uncertainty and open the door to overindulgence and case-by-case treatment and would go against the standardized approach that prevails in CAS arbitration (CAS 2020/A/7075, para 82).”
Besides, the Panel noted that no rule in the Code, Swiss procedural law, or jurisprudence would render an official notification served late in the evening delivered only on the next day.
The Panel concluded that HFF was not “deprived of its ability to defend its reasonable interests by filing an according appeal on time”. Therefore, the Panel decided that HFF filed its appeal late, and the appeal was inadmissible.

1. See CAS 2021/A/7713 Fédération Guinéenne de Football c. FIFA & M. Paul Put, par. 52 et. seq.
2. See, e.g., CAS 2019/A/6294 PFC Lviv LLC v. UEFA and CAS 2019/A/6298 Manchester City FC v. UEFA.
3. On 28 April 2022, during the hearing on admissibility, HFF submitted a FIFA press release concerning the FIFA Legal Portal dated 25 April 2022.
4. A. Rigozzi and E. Hasler in M. Arroyo (ed.), ‘Arbitration in Switzerland: The Practitioner’s Guide, 2 nd edition’, Vol. 2, p. 1651, N9 ad Article 56, and the references.
5. See SFT 135 III 88, par. 4.1; SFT 143 IV 380, par. 1.1.1 et seq.; CAS 2018/A/5534 Yannick Toapry Boli v. FC Anji Makhachkala, par. 74 et seq.
6. The Award at par. 89: “Even if it is not stamped with an official seal, its source and content are not disputed by the party that drafted it and put it online, namely the Respondent. It may therefore constitute a well known fact exempt from the burden of proof.”
7. See, e.g., CAS 2006/A/1065 W. v. FEI, quoted in TAS 2011/A/2568 Raja Club Athletic c. FC Chiasso & Iajour Mouhssine, par. 62 et seq.
8. Article 34.1 FDC states: “Time limits to which the associations shall adhere commence the day after they have received the relevant document.”
Article 34.2 FDC states: “Official holidays and non-working days are included in the calculation of time limits. Time limits are interrupted from 20 December to 5 January inclusive.”
Article 75 CC states: “Any member who has not consented to a resolution which infringes the law or the articles of association is entitled by law to challenge such resolution in court within one month of learning thereof.”
9. CAS 2011/A/2360 & 2392 English Chess Federation & Georgian Chess Federation v. Fédération International des Echecs (FIDE), par. 54; see also CAS 2007/A/1413 World Anti-Doping Agency (WADA) v. Fédération Internationale de Gymnastique (FIG) & Nadzeya Vysotskaya, par. 21 et seq.; CAS 2008/A/1705 Grasshopper v. Alianza Lima, par. 21 et seq.; CAS 2018/A/5702 Pere Hernández Ripoll v. Federación Internacional de Pádel (FIP), par. 79 et seq.
10. See SFT 4A_488/2011, par. 4.3.2; SFT 4A_413/2019, par. 3.3.2.
11. See CAS 2019/A/6253 Wydad Athletic Club v. FIFA & Chisom Elvis Chikatara & El Gouna and TAS 2020/A/7494 Flemming Serritslev c. FIFA & Association Nationale de Papouasie Nouvelle Guinée, citing CAS 2006/A/1153 World Anti-Doping Agency (WADA) v. Portuguese Football Federation (FPF) & Nuno Assis Lopes de Almeida; CAS 2008/A/1548 Piroozi (Perspolis) Athletic & Cultural Club v. FIFA, par. 17.
12. See e.g., TAS 2020/A/7494 Flemming Serritslev c. FIFA & Association Nationale de Papouasie Nouvelle Guinée, par. 61 et seq.; CAS 2019/A/6294 PFC Lviv LLC v. UEFA, par. 78; CAS 2017/A/5334 Associação Chapecoense de Futebol v. Confederacion Sudamericana de Futbol (CONMEBOL), par. 64 et seq.