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CAS 2010/A/2275CGF v. EGA,award of 20 June 20111291/53, in REEB M. [ed.], Digest of CAS Awards 1986-1998, p. 79, 86 et seq.; CAS 2001/A/317,para 6) such as the Appellant’s expulsion from the EGA.31. As already mentioned above (para 25), it is doubtful whether Article 16 par. 3 of the EGAConstitution can be applied in the present case in view of the Appellant’s right to be heard.However, even if this were the case and even if the letter from the COC containedinformation which would meet the “urgency” requirement in Article 16 par. 3 of the EGAConstitution, the Appellant’s right to be heard would at the very least have required the EGARespondent to immediately inform the Appellant (and the other members) that the EGAdeemed the information received from the COC to be relevant for a possible expulsion of theAppellant at the AGM 2010. This course of action would have allowed the Appellant toprepare its defence against the Resolution, which is quite obviously of crucial importance toits future, and enabled the other members to consider the issue.32. The letter from the COC is dated 16 September 2010.33. Absent any evidence on record or any submission by the Respondent to the contrary, there isno reason to consider that the Respondent did not receive the COC’s foregoing letter well inadvance of the day on which the AGM 2010 took place.34. Consequently, the Panel finds nothing that justifies the EGA having waited until the eve ofthe AGM 2010 before informing the Appellant, let alone its refusal to provide the Appellantwith the relevant documents on that occasion and at the AGM 2010 itself.35. In particular, the Panel finds that the letter from the Ministry of Science, Education and Sportwhich the Respondent, according to its Answer, received on 13 October 2010, does notconstitute such justification. First of all, even if this letter did in fact, as submitted by theRespondent, confirm the legality of the COC’s decision to expel the Appellant (which thePanel finds highly doubtful, see para 19 above), the question would remain whether theAppellant’s expulsion from the COC could per se justify the Resolution in light of the CASjurisprudence mentioned in para 27 above. Because only then would the Ministry’s letter havecontained relevant information with regard to the Resolution.36. However, the questions raised in the previous paragraph can be left open. Given that theAGM 2010 was at best one month ahead when the Respondent received the COC’s letter,time was of the essence in order to provide the Appellant with the opportunity to prepare itsdefence. The Respondent was therefore obliged to inform the Appellant immediately uponreceipt of any information which could later form the basis for a resolution to expel theAppellant. Waiting for a confirmation of any sort could not discharge the Respondent fromthis obligation given the fundamental importance of the right to be heard. Also, immediatenotification would not have hurt any reasonable interests of the Respondent. If the soughtafterconfirmation would not have been received before the AGM 2010, the Respondentcould have decided either – if it deemed the available information sufficient – to nonethelesstake a vote on the Appellant’s expulsion or – if it deemed the confirmation a conditio sine quanon for the expulsion – to postpone the vote once again.
CAS 2010/A/2275CGF v. EGA,award of 20 June 20111337. Hence, in view of the fact that the Resolution was (at least inter alia, if not exclusively) basedon the information contained in the letter from the COC, the Respondent was obliged toimmediately notify the Appellant thereof. The outstanding confirmation from the Ministry didnot justify the Respondent’s waiting until the eve of the AGM 2010 before informing theAppellant that its expulsion would be sought on the basis of facts which had come to theRespondent’s knowledge weeks before. Even less could it justify the Respondent’s refusal toprovide the Appellant with the documents on which the Resolution was taken, even afterbeing expressly requested to do so on both 16 and 17 October 2010. This course of actionconstituted a severe violation of the Appellant’s right to be heard.38. Unlike in other cases (see CAS 2004/A/714, para 11 or CAS 1920/A/2009, para 87 withfurther references), the de novo proceedings before CAS (in accordance with Article R57 of theCAS Code) cannot be deemed to have cured the violation of the Appellant’s right to be heard.The vote taken by the AGM 2010 on the Resolution is not a decision which was largelydetermined by legal standards and which the Panel could therefore take in lieu of thedelegates.39. Article 6 para 1 of the EGA Constitution reads as follows:“All members shall observe the Constitution and Rules of the Association. In the event of their violation anymember may be expelled by a majority of two-thirds of those present and represented voting at an AnnualGeneral Meeting or an Extraordinary General Meeting”.40. Article 6 para 1 of the EGA Constitution might or might not stipulate that the facts presentedto the delegates by the Respondent’s Secretary General justified the expulsion of theAppellant (this can be left open here). In any event, it is still very much a “political” decisionwithin the discretion of the delegates whether or not to expel a member. In particular, itfollows from the wording of Article 6 par. 1 of the EGA Constitution (“may be expelled”,emphasis added) that the delegates certainly did not have a legal duty to vote in favour of theAppellant’s expulsion.41. As has been established in the case CAS OG 96/005, paras 10 et seq.“the Panel’s function is to review the propriety, in the broadest sense, of the decision of the decision maker; it isnot to become the decision maker itself. […] There are, of course, exceptional cases when a body such as thisPanel, can overlook a clear departure from due process because it can determine that the decision would havebeen the same in any event; i.e. that there was nothing that the victim of the decision could have said topersuade a reasonable decision maker to change his mind. But the law has always recognized that such casesare rare […]”.42. Pursuant to Article 6 para 1 of the EGA Constitution, the Annual General Meeting is thedecision maker with regard to the expulsion of members. The Panel would only be able tocure the violation of the Appellant’s right to be heard if it could exclude the possibility thatthis violation had a bearing on the outcome of the case (cf. also CAS 2004/A/777 para 58).
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