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This article was first written for and published by LawInSport and the original can be viewed here.
The Russian invasion of Ukraine commenced on 24 February 2022. Four days later the Bureau of the FIFA Council suspended Russia’s national teams from participation in FIFA competitions (1). On the same day the UEFA Executive Committee suspended all Russian football clubs from participating in UEFA competitions, later removing those clubs, on 2 May 2022, from the list of participants in its competitions for the 2022/23 football season (2).
The Football Union of Russia and four Russian football clubs thereafter appealed those decisions to the Court of Arbitration for Sport (“CAS”). In late November 2022 CAS dismissed those appeals in two arbitral awards handed down on the same day: Football Union of Russia v FIFA (CAS 2022/A/8708) (“the FIFA Award”) and FC Zenit JSC & Ors v UEFA (CAS 2022/A/8865 to 8868) (“the UEFA Award”).
This article discusses and analyses the arguments made in the case, and the author provide their opinion of what the case means for the response of sports organisations to future political disputes of this nature.
The essence of the challenges in both appeals was (in summary) that:
In dismissing those challenges, the CAS found (again in summary), accepting in broad terms the positions put forward by FIFA and UEFA that:
There are a number of interesting points which emerge from the awards, and which will be of relevance to practitioners, in particular where similar measures have been imposed by international federations across a number of other sports. At the top of the list is the question of whether the decisions were, in reality, “sporting sanctions” imposed by FIFA and UEFA as part of an international response to the Russian invasion. Much of the argument advanced by the appellants was premised on the assertion that they were.
In support of that contention, it was possible in the FIFA proceedings to point to language contained within the FIFA decision itself, which recorded that the Swedish FA, the Polish FA and the Czech FA were refusing to play the Russians under any circumstances, and which then stated that those positions ‘must be respected’, were ‘fully understandable’ and could not be ‘criticised from either a legal or moral point of view.’
At the stage of characterising the FIFA decision as an administrative one, the CAS panel did not make direct reference to those comments. (3) Its finding proceeded on the basis that there was no evidence to suggest that the measure was taken other than on the administrative basis asserted by FIFA in its response submissions before CAS . The CAS panel also observed (4) that it made no sense to conceive of the decision as disciplinary where the Russian football team was not alleged to have breached any applicable FIFA Regulation or FIFA Statute (which, in the author’s opinion, might be said slightly to evade the point: the issue was whether the team was being sanctioned to send a message to the Russian government or military).
The CAS panel did eventually engage with those comments later on in the award, when rejecting the submission that the decision infringed the principle of political neutrality, as reflected in Articles 4.2 19 of the FIFA Statutes). In that regard, Article 4.2 provides that FIFA remains neutral in matters of politics and religion, and Article 19 provides that member associations must manage their affairs independently and without undue influence from an external party. . The CAS panel accepted that the position adopted by some of the national associations was ‘clearly a consideration’ which FIFA had taken into account, but held that it was ‘one of many’, as part of a response to extraordinary and unforeseen circumstances, ‘and not because it favoured a particular political position’ (5). In the author’s opinion, this reasoning does not sit entirely comfortably with the wording used by FIFA in its decision, but the fundamental point for the CAS panel was that it did not consider itself, on the evidence available, in a position to find that the decisions had been taken on a fundamentally different basis to the one being put forward by FIFA on the appeal. Similar reasoning appears in the UEFA Award6, where there is also an interesting analysis of whether “political neutrality” in that context requires anything other than independent decision making.
Had the CAS panel reached the view that the suspensions imposed by FIFA and UEFA were, in reality, sporting sanctions, it would have been necessary to engage with a number of difficult questions. These include:
Those are questions which any judicial panel would expect in the first instance to be engaged with, directly and properly, by the relevant legislative and executive organs of the sporting body. In this context there was no suggestion that the statutes or regulations of UEFA or FIFA provided any express framework for the consideration or justification of such measures.
The CAS held (by a majority) that competence to take the relevant decisions was grounded in regulations dealing with residual powers. In UEFA’s case, the relevant provision was Article 65 of the UEFA Statutes, which conferred on the Executive Committee the power to decide ‘on all matters not covered in these Statutes’. In the case of FIFA, Article 31 of the World Cup Regulations provided that ‘Matters not provided for in these Regulations or any cases of force majeure shall be decided by FIFA.’ In each case, CAS accepted (by majority) that the “matters not covered” provision sufficed to provide competence in respect of the decisions under challenge. The fact that no better or more specific basis for the decisions is striking, but might be said to illustrate the unprecedented nature of the situation confronting FIFA and UEFA.
In the case of FIFA, because the relevant provision went on to refer to “force majeure”, the CAS considered (strictly in a way that was obiter) whether the circumstances could be characterised as a force majeure situation. The CAS acknowledged that force majeure is not defined under either the FIFA statutes or Swiss law. It went on to adopt the working definition used in previous CAS awards, in the context of contractual disputes, in the following terms ‘an objective impediment beyond the control of the obliged party that is unforeseeable, that cannot be resisted and that renders the performance of the obligation impossible.’ The CAS found, by a majority, that such a situation had arisen (FIFA Award §124). This was not on account of the military conflict in and of itself, but rather in light of the ‘extraordinary and unprecedented consequences that followed it’, being ‘the widespread condemnation of the military conflict by international organisations and governments, the reaction of the international sports community to the conflict, the imposition of sanctions and travel bans on Russian people and businesses, the uncertainty and duration of the conflict, and the exceptional and widespread international public reaction against it’ plus the refusal of three national associations to play the Russian team, ‘the prospect of other teams adopting a similar stance’, ‘the effect these refusals might have for the organisation of the World Cup 2022’ and the ‘related security concerns’ (ibid).
It is not immediately obvious, considering those factors individually or cumulatively, how they rendered participation of the Russian team in the World Cup ‘impossible’, which is where the definition of force majeure adopted by the CAS panel ultimately leads. Certainly, they gave rise to various risks and difficulties (addressed below) which UEFA and FIFA needed to consider and weigh in the balance as part of any decision to suspend. But the CAS panel’s finding that participation was not even ‘possible’ in these circumstances sets the scene for its review of the justifications advanced. As set out further below, this ultimately hinged on two points:
As to the security concerns, the position of FIFA and UEFA was that matches involving Russian teams would give rise to unacceptable safety and security risks, which could not be mitigated even by holding the matches on neutral venues, behind closed doors (a measure which UEFA did deem acceptable in the case of Belarusian teams: UEFA Award §182). The CAS panel accepted that justification, in the following terms (7):
‘The Panel…accepts that the very presence of the Appellant’s teams (to be distinguished from the presence of Russian individuals in, for example, non-team sports such as tennis) might generate protests that escalate into violence. It observes that unlike some other sports, football, sadly, has proven over the years particularly prone to extreme crowd reactions that are sourced in racism, nationalism or religious differences. It is not unknown for tensions between different groups to spill over into violence at or around football events, creating security and safety concerns inside and outside a stadium.’
Those are particularly striking comments, recording, as they do, an acceptance of a real risk that football fans might on both sides descend upon a neutral venue, even though unable to attach the match itself, and in lieu of such attendance engage in violence within the stadium surroundings, in support of, or protest against, the Russian invasion of Ukraine.
The CAS panel similarly distinguished the position which had been adopted in other sports where Russian participation continued (citing the examples of table tennis and luge): ‘with all respect to the sports involved, they are not of the same global scale as football and their statutes, regulations and decision-making processes will differ to [FIFA’s or UEFA’s]’8.
The refusal of other national teams to play the Russian national team
In the FIFA proceedings, another issue was the refusal by a number of other national teams to play the Russian national team in protest at the invasion. Did that justify excluding the Russian team in the interests of the competition overall?
The Appellants contended (in summary) that:
They further contended that it was plainly unfair and disproportionate for a team, not in breach of any rule, to be suspended from participation in order to facilitate the smooth running of the organisation.
The CAS panel accepted, without deciding the point, that it was ‘at least arguable’ that the Swedish FA, Polish FA and Czech Republic FA were in breach of their obligations under Article 14(1)(b) of the FIFA Statute (obligation for Member Associations to take part in competitions organised by FIFA) and that ordinarily ‘a refusal to play by one member against another in a FIFA competition should expose the former to the risk of sanction and should not result in any form of detriment to the latter, in particular not its exclusion from the competition’ (9).
However, emphasising the “unique” nature of the circumstances, the CAS panel observed that whilst teams may be obliged to participate, they could not be compelled to participate. This left FIFA with two problems:
Notwithstanding that such problems arose in consequence of the choices of other teams, it was in those circumstances justified, so the CAS panel held, to exclude the Russian team.
Underpinning the approach of the CAS panel across both awards was:
The focus of the assessment was upon the circumstances as at the date of the decisions (see FIFA Award §§153-158), and (as set out above) the assessment was football-specific.
The big question which the awards leave open is how long such suspensions can be maintained, or repeated, without further challenge. FIFA Award §136 records that in the circumstances which ‘still prevail’ as at the date of the drafting of the award, maintaining the Russian team’s right to participate would have made it ‘extremely difficult, if not impossible, for FIFA to stage the kind of World Cup 2022 competition that it envisaged or indeed any other FIFA competition.’ That might be taken to suggest that suspension will be justified until the cessation of the conflict. On the other hand, the CAS panel was explicit in its hope that those ‘circumstances develop in a way that the suspension can properly be lifted (11). Indeed, it might be suggested that the longer the conflict endures, the more a governing body will be expected to accrue and assess updated, and more concrete, evidence as to the risks and challenges which the conflict gives rise to, and the feasibility (or lack thereof) of less intrusive administrative measures.
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