Analysis of FIFA & UEFA’s commitment to legal neutrality and the Russian suspension
Abstract
Since the Russian invasion of Ukraine, FIFA took the decision to suspend Russia from its major sporting events, including the men and women’s World Cup in Qatar 2022.[1] At the same time UEFA removed Spartak Moscow from the Europa League and moved the 2022 Champions League final from St. Petersburg to Paris. UEFA followed through shortly afterwards by cancelling its sponsorship deals with Gazprom (the state-owned Russian oil company) signalling a removal of Russian influence in the game for the foreseeable. This has caused some to question the neutrality of FIFA and UEFA,[2] and question whether these sporting bodies can remain under their veil of impartiality to political events worldwide. Since this decision, the Football Union of Russia (FUR) has sent an appeal (and failed) to the Court of Arbitration for Sport looking to reverse this decision to suspend. The discussion below analyses the decision and general background to FIFA and UEFA’s commitment to neutrality and the legal context surrounding it.
Introduction
As part of this essay, I will discuss whether FIFA and UEFA should have remained neutral to the ongoing invasion of Ukraine by the Russian Federation. I will discuss whether they should have suspended Russian players from their tournaments (notably the UEFA Europa League and the 2022 Qatar World Cup). I will present this discussion in the following structure: firstly, I will discuss the human rights policy adopted by FIFA and UEFA and then mention who and when these powers have been used in the past. Secondly, I will discuss the applicable law to Russia’s exclusion and discuss what jurisdictions and competences could have been used in the decision of the suspension. Thirdly, I will discuss the actual opinion of the Court of Arbitration for Sport and it’s ruling in the appeal case brought by the Football Union of Russia. I will then lastly discuss some of the debate that has ensued since Russia has been excluded. This discussion will end with a conclusion with my own opinion.
Human Rights & Geopolitics
FIFA has made human rights integral to its mission in the promotion of football worldwide. In the revised 2016 FIFA Statutes, FIFA included Article 3 detailing that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”. As part of FIFAs human rights policy it is committed to respect human rights in accordance with the UN Guiding Principles on Business and Human Rights. In Article 4(2) of the FIFA Statutes, FIFA defined for itself neutrality on “matters of politics and religion” whereby FIFA had the discretion to make exceptions to this neutrality should the matters “[affect] … FIFA’s statutory objectives”.
It is notable that in the description of its human rights policy, FIFA makes no reference to the European Convention of Human Rights however, CAS jurisprudence explicitly states the use of ECHR case law and principles as the human rights benchmark by which it rules. This case law ranges from the procedural rights to a fair trial[1] and fundamental rights established in the ECHR[2] where Swiss Law is used to fill in the gaps.[3] In the absence of their being adequate case law or statute to protect human rights, CAS has adopted other standards from other governing bodies. It is thus possible to imagine FIFA relying on “Olympic Truce”.
The Olympic Truce first originated from ancient Greece and provided that during the Olympic Games a truce was to be announced by all participating countries. This was to ensure that the host city was not attacked and that athletes and spectators could travel safely to and from the Games. In 1992 the International Olympic Committee renewed the tradition of the Olympic Truce, calling upon all nations to observe the Truce during the modern games. The legal relevance of this Truce came from the United Nations, whereby recognition of this Truce was seen in Resolution 48/11 in 1993. Shortly afterwards the United Nations furthered its recognition of the Truce providing that sport was an “important influence in world peace and politics” in Article 10 of the UN Millennium Declaration. This was notably not constrained to the Olympics, rather to sport more generally.
FIFA and UEFA have made a point of staying neutral when it comes to geopolitics and individual right to self-determination. President Infantino of FIFA stated previously that “the essential role of FIFA, as I understand it, is to deal with football and not to interfere in geopolitics”.[4] When considering if an issue would hamper FIFA from carrying out its statutory objectives the FIFA council is “empowered to take emergency actions”.[5] Similarly UEFA’s governing council is granted the same powers. These powers were used in the 2018 Palestine decision[6] where CAS indicated that the FIFA Council has discretion on what it has and has not to choose with regards issues politically and internationally. In this case the Palestine Football Association was appealing to be allowed join the FIFA Council as an official member, invoking that it had a right under Article 72(2) of the FIFA Statues as FIFA failed to intervene in the boundary dispute with the Israel Football Union. CAS was of the opinion that there was no obligation on FIFA to intervene in this dispute and this was outside of FIFAs realm of opinion. The FIFA Council was thus not obliged to descent on this issue and had the discretion not to intervene.
FIFA could be seen further not to partake in geopolitical disputes. After the 2008 Russian invasion of Georgia and the 2014 annexation of Crimea, FIFA decided to abstain from giving an opinion on this matter. The 2018 World Cup was further held in Sochi despite this annexation where Russia was also allowed to take part in the tournament. This was in spite of other Sporting Governing Bodies not allowing Russia to compete under the name of a Russian national team (notably the Olympics).
The issue of identity politics has further seen a relaxation of rules. The IOC had a long history of preventing athletes from using the stage to “highlight pressing political issues”.[7] This rule can be found in Rule 50 of the IOC Charter which states “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”. FIFA unlike the IOC hasn’t defined as explicitly its parameters on the issue preferring to keep it vague in Law 4 of the Laws of the Game.[8] After a series of political statements from the Republic of Ireland in 2016 (commemoration 100 years since the uprising against British rule) and English, Scottish and Welsh teams wearing poppies, FIFA chose to alter the words of its law to allow for “permitted slogans, statements or images”. The BLM movement has made a clear bending of the rules in this respect where taking the knee has not explicitly been allowed, but UEFA hasn’t been seen to reprimand over. FIFA and UEFA in this context have not been fully impartial to political statements, rather amending rules and turning a blind eye where politics permits.
Applicable Law
Article 57 of the FIFA Statutes and Article 62 of the UEFA Statutes grant jurisdiction to hear appeals decisions of FIFA and UEFA with the Court of Arbitration for Sport (CAS). There has been extensive CAS jurisprudence built up with regards bans and suspensions of players and teams where one side appealed a decision for a stay on suspension. In FC Sion & Essam El-Hadary v FIFA[9] there was a dispute regarding a players breach of contract where another club induced a breach of contract to a successful goalkeeper during a protected period. The goalkeeper (Essam El-Hadary) asked CAS for an interim stay of the FIFA decision while the goalkeeper got a defence and possible compensation prepared. CAS established in this case a three point test when issuing sanctions or penalties on a player or club. The first of these conditions was Irreparable Harm – whereby a the club or player had to establish in evidence that the damage for suspension would cause irreparable harm to the player/club (this could include permanent undervaluing of the player due to reputational damages). The second condition was that the appellant must have an arguable case. The third condition is that the Balance of Interests must be carried out to determine if more harm is cause by permitting stay than if not. All of these conditions must first be met before stay is permitted.
As discussed earlier, FIFA and UEFA are beholden to rights established under the ECHR. As well as this, the Bosman case[10] established that EU Law is applicable to UEFA and FIFA decisions. Article 3(c) TFEU establishes the right to the four freedoms within the European Union. According to Article 12 TFEU, “any discrimination on grounds of nationality shall be prohibited”. In Bosman, the ECJ established that any EU Law is horizontally directly effective, whereby the practice of discrimination by UEFA was found in breach of the four freedoms and thus in contravention of EU Law. This case had the implication of competition policy of the EU being applied to sports and how it is regulated.[11] Competition Law within the EU is contained in Article 101 TFEU, which prevents “all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States, and which have as their object or effect the prevention, restriction or distortion of competition within the internal market”. An undertaking for the purposes of this is any activity that amounts to economic activity.
CAS’ Code of Sports-related Arbitration provides that disputes shall be decided “according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties” (Article R58). This means that the applicable regulations the case of FUR against FIFA & UEFA would be the FIFA Statutes and UEFA Statutes which would form the primary applicable law. The subsidiary applicable law would be Swiss law as given under FIFA Statutes Article 56(2) and UEFA Statutes Article 64. In Club Raja Casablanca v FIFA, CAS clarified that “the starting point of the analysis will be the relevant FIFA statutes. To the extent that there are gaps in these statutes, the Sole Arbitrator will have recourse to Swiss law (which, anyway reflects a standard of protection of human rights at least equivalent to that embedded in the European Convention on Human Rights)”. Thus, the applicable law would be FIFA and UEFA statutes, supplemented by Swiss law and general principles of international law.”[12]
CAS does recognise that sport governing bodies (SGB) can sanction member associations in accordance with applicable rules and general legal principles. Article 16 of the FIFA Statutes allows FIFA to “temporarily suspend...a member association that seriously violates its obligations”. Under Article 2(a) of its statutes, FIFA provides its objectives to promote football in light of its unifying, cultural and humanitarian values. As mentioned previously Article 3 states FIFA’s commitment to “respect and promote internationally recognised human rights”. Substantive authority is granted under Article 32(12) of the Statutes which says that the FIFA Council “shall deal with all matters relating to FIFA that do not fall within the sphere of responsibility of another body”. The FIFA Governance Regulations further say in Article 8(2) that the Council has a duty to define and deal with football’s “political, economic and social status” and define FIFA’s overall strategy, including political matters. UEFA can use the FIFA ban to facilitate banning of members in its tournaments as provided under Article 8(3)(d) in the UEFA statutes.
The Decision in CAS 2022/A/8708 Football Union of Russia v FIFA et al.
Under Article 57 of the FIFA statutes and Article 62 of the UEFA statutes, the Court of Arbitration for Sport (CAS) is granted jurisdiction to hear appeals against any decision of FIFA and UEFA. CAS heard the appeal of the Football Union of Russia (FUR hereinafter) against the suspension applied by FIFA and UEFA in the named case following the invasion of Ukraine by the Russian Federation. During the hearing of this case FUR made the claimed that the exclusion of the Russian teams from the World Cup and UEFA competitions would “result in immediate harm … that would be impossible to repair at a later stage”. The basis for this argument was that exclusion from competitions would affect the teams FIFA rankings, exposing them to more difficult draws and affect their “visibility and sponsorship opportunities which [couldn’t] be remedied financially”. The FUR further raised two arguments under the FIFA Statutes: one being that other teams like Poland, Czech Republic and Malta should remain neutral, and the “right to take part in the competitions organised by FIFA” contained in Article 13.
The Court held in favour of FIFA stating that in the given case general allegation are not enough to establish “irreparable harm”. The suspension of athletes is not itself sufficient to establish irreparable harm,[13] and the risk of not playing a few games in a “major sporting event” can be cause of irreparable harm[14] but FUR did not establish sufficient evidence on this basis. CAS further found that had not qualified for the World Cup so there was a possibility it may never have played in the event. On this basis there was no “right” to take part in the World Cup.
The final opinion left by the Court was that on the “balance of interests” test. In its descent, the President of the court believed Russia had an undoubtable interest being in FIFA and UEFA competitions, however by coercing FIFA and UEFA to host games with the appellant the court would be compromising the “smooth running of the competition” whereby teams like Czech Republic, Montenegro and Malta refused to play against Russia. Similarly, the application of Russia to the qualifying games would cause huge disruption as a third-party host state would need to be found, but CAS was presented with evidence that no third-party state would allow this to happen. Security measures and safety concerns were also raised that would put athletes in unnecessary risk of harm should they be allowed to play. Based on these arguments the Court held to reject the appeal of FUR.
SGBs Response and Criticism of FIFA and UEFA
After the invasion of Ukraine, the IOC decidedly banned Russia from any Olympic games and recommended all global sporting competitions not to invite Russian or Belarusian athletes to international competitions to “protect the integrity of global sporting competitions and for the safety of all the participants”. The decision to suspend Russia from the 2022 Qatar World Cup and UEFA competitions, came after the decision of the International Olympic Committee’s (IOC) decision following the breaking of the “Olympic Truce”. Although the 92 pages of statutes do not permit FIFA to exclude for non-sporting matters, it is argued that the recent suspension has been influenced by non-sporting matters.
As Beijing hosted the 2022 Winter Olympic Games the IOC stated the there was no place for politics in sports when faced on the issue of the human rights of the Uyghur population in China. Just a week after this statement the IOC decidedly made a U-turn on this policy, banning Russia from all its competitions and urging other international sporting bodies to act in the same way. This harsh stance is however contrary to the position the IOC held for some time before February 2022. After Russia’s invasion of Georgia in 2008, the IOC awarded Russia the 2014 Sochi Games where the IOC was decidedly mute on the invasion. Six years later, the annexation of Crimea began and the FIFA world cup in 2018 was soon held afterwards in spite of this. In most recent times, the 2022 World Cup in Qatar has been plagued by controversy over the nations openness and admitted lack of rights to women and the LGBTQ community. The 6,500+ Qataris that have died in the construction process since the award was made has also gone under the radar of the FIFA Council showing that FIFA and other sporting bodies have left a precedent before this time that insisted on abstention and turning a blind eye to the human rights FIFA says it so dearly promotes and cherishes.
One of the main criticisms to the FIFA and UEFA decisions is that the exclusion of Russia from each tournament is purely political. This is argued on the basis of all Russian athletes suspension rather than the RFU suspension. Recipients of the Palestine case in 2018 feel hard done by as FIFA previously chose not to intervene on the premise of remaining impartial.[15] This has understandably raised questions and provided precedent that FIFA and UEFA may bear the consequences of later.
Conclusion
The FIFA and UEFA decision to suspend Russia from the 2022 World Cup and Europa League was clearly within their legal remit. As established through the FIFA and UEFA statutes, the FIFA Council and UEFA Executive Committee have extensive legal powers to exclude clubs from their respective tournaments should any actions prevent the associations carrying out its objectives.
It is however clear that the decision by FIFA and UEFA was heavily influenced by the decision of the IOC. It has further opened the way for a further floodgate of appeals based on political matters, where we could inevitably see another Palestine submission to the CAS tribunal. From paternalistic perspective, the potential costs that would have been entailed in hosting the Russian Federation team in the 2022 Qatar World Cup would have been too high. Security of players and the efficient running of a tournament where all teams played would not have been possible, as well as the unjust absence of the Ukrainian national team.
The decision by FIFA and UEFA could in some respect be considered to have remained neutral by suspending Russia amid security concerns, but on the political backdrop and FIFAs previous record of bending the rules when it suits could portray not so impartial FIFA (double negative intended). I conclude that FIFA and UEFA should remain neutral where security allows, but in this event they were right not to be impartial.
[1] Article 6 ECHR; further adopted into CAS case law in CAS 2012/A/2747 WADA v. Judo Bond Nederland (JBN).
[2] CAS 2011/A/2433.
[3] CAS 2019/A/6345 Club Raja Casablanca v FIFA, para 35. – (it was said here “sole arbitrator will have recourse to Swiss Law … in order to fill the observed gaps”)
[4] Newsweek, 'World Cup 2022 Not Threatened by Qatar's Diplo- matic Struggles, FIFA Chief Says' <http:// www.newsweek.com/world-cup-2022-not-threatened-qatar-struggles-fifa-624118> accessed 23 May 2022.
[5] Henry Bushnell, 'Russia might challenge the World Cup ban in court. To defend it, FIFA might have to get political' (Yahoo Sports, 2022) <https://sports.yahoo.com/russia-might-challenge-the-world-cup-ban-in-court-to-defend-it-fifa-might-have-to-get-political-223816752.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAEQvBuPR35ik9crxXkHsXQn9rfGQIy0vKjMAy2mVWHT_vjSIh1NDrp6nTZkls6iQghkFxkGQbDE_HZUAVN8paR9PHpODg3ff611CHhOEO_D5aMzEfOlKRJ05r-vfJRZQog88xiMXBtc9qdhsKNLq4JncQHFKL5Cvgue_hczL-6Ze> accessed 25/05/2022
[6] CAS 2017/A/5166 & 5405.
[7] Lindholm, How Russia’s invasion of Ukraine shook sports’ foundation
[8] Simon Evans, 'Politics and protest in sport: Have FIFA’s rules changed?' (Reuters 2021) <https://www.reuters.com/article/us-soccer-fifa-protests-idUSKBN2BI2FN> accessed
[9] CAS 2009/A/1880 and 1881
[10] Case C-415/93, Union Royale Belge Sociétés de Football Association and Others v. Bosman [1995] ECR I-4291.
[11] Richard Parrish, Sports law and policy in the European Union (Manchester University Press 2003)
[12] Alexander Wild, CAS and football: landmark cases (Springer Science & Business Media 2011)
[13] CAS 2008/A/1569.
[14] CAS 2008/A/1453.
[15] Bushnell, 'Russia might challenge the World Cup ban in court. To defend it, FIFA might have to get political'
[1] FIFA, Bureau of the FIFA Council takes initial measures with regard to war in Ukraine (2022) Available at: https:// www.fifa.com/tournaments/mens/worldcup/qatar2022/media-releases/bureau-of-the-fifa-council-takes-initial-measures-with-regard-to-war-in(accessed 25th May 2022).
[2] Johan Lindholm, How Russia’s invasion of Ukraine shook sports’ foundation (Springer 2022)