Ahead of the game? Sporting sanctions against Russia following the invasion of Ukraine

“I am always amazed when I hear people saying that sport creates goodwill between the nations, and that if only the common peoples of the world could meet one another at football or cricket, they would have no inclination to meet on the battlefield” George Orwell, The Sporting Spirit (1945)

Almost immediately after the invasion of Ukraine took place, in a truly unusual reaction, a growing number of sports associations have in recent days taken measures which are aimed not only at preventing the organisation of international sports competitions in Russian or Belarusian territories but also affect the participation of Russian and Belarusian athletes in sporting competitions held worldwide. The International Olympic Committee’s (IOC) Recommendation, adopted on 28 February, kicked off and, in a way, resolved a dilemma that many of these associations were facing. Indeed, when its Executive Committee recommended the non-participation of these athletes or teams in international competitions, a cascade of decisions followed from FIFA, ITF, FIBA, ISU, and World Athletics, among  others. As for the International Paralympic Committee, although in a  first decision it maintained the participation of these athletes and teams in the Beijing Games, although under the Paralympic flag and without being included in the medal table, finally that decision was reversed. For its part, the International Judo Federation announced the suspension of President Putin’s status as its Honorary President and Ambassador.

It is nothing new that sport is a tool for staging political protest, diplomatic reproach or even sanction in the face of non-compliance with international law. In a normative vein, it is worth mentioning two examples.

Firstly, the United Nations Convention against apartheid in sports provides a valuable example of how sport can be conceived as a tool to tackle serious human rights violations. The Convention was signed in December 1985 and entered into force on 3 April 1988. Currently, 62 states are parties to it. According to article 3, States parties are obliged to not permit sports contact with a State practising apartheid and to take appropriate action to ensure that their sports bodies, teams, and individual sportspersons do not have such contact. It is worth asking whether we could consider this Convention a model to be followed in cases of other very serious human rights violations.

A second example of great interest is related to the action of the United Nations Security Council on the basis of chapter VII of the United Nations (UN) Charter. Sports sanctions have also been part of the Security Council’s action in this context. In its Resolution 757 (1992) on sanctions against Yugoslavia, the Security Council decided that all States should:

“take the necessary steps to prevent the participation in sporting events on their territory of persons or groups representing the Federal Republic of Yugoslavia (Serbia and Montenegro)”.

One immediate consequence was that Yugoslavia was banned from the Euro football championship 1992, for which it had qualified. It was replaced by Denmark, who finally won the tournament. Also, the chess player Bobby Fischer experienced first-hand the consequences of circumventing the sanctions.

From a political point of view, a reference to sporting boycotts has to be made. These are not sanctions in the strict sense. I think they can be understood as acceptable methods of retorsion – unfriendly, but legal – if they don’t violate any international obligation previously assumed by the State. As history shows, they are typical and effective vehicles for political protest. The issue has re-emerged on the occasion of the celebration of the Beijing Winter Olympics. It is not contrary to international law or illegitimate that certain States announced their decision not to send representatives to the Games. Indeed, this was the recommendation made by the European Parliament (EP) to the EU Member States. In a Resolution adopted in September 2021 on a new EU-China strategy, the EP recommended:

“that EU and Member State leaders reject invitations to the Beijing Winter Olympics if there is no improvement in the human rights situation in China and Hong Kong, and no high-level EU-China human rights dialogue or summit with tangible results”.

There is no doubt that the Russian Federation’s invasion of Ukraine seriously contravenes peremptory norms of general international law that protect the most fundamental interests of the international community. Given the impossibility of Security Council action on the basis of Chapter VII and the uncertainty of what role the General Assembly might play in the future, unilateral or institutionalised state action is all the more essential. State obligations are well established in international law, as set out in 2001 in Chapter three of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts. In addition, and more directly related to sport, the invasion breaches the Olympic Truce adopted by UNGA on 2 December 2021 by consensus of all 193 UN Member States. That is, including the Russian Federation.

What is absolutely new now is the strong and immediate involvement of the sports movement, which has always fiercely defended neutrality as a fundamental ethical principle (see art. 1.2 of the IOC Code of Ethics). It is precisely this neutrality that has underpinned the controversial and severe limitation of athletes’ right to freedom of expression in the sporting domain enshrined in particular in Rule 50 of the Olympic Charter (see here and here). On this occasion, however, a good number of sport governing bodies (SGB’s) have taken sides. Beyond the more or less obvious sympathy that this reaction has garnered, some particularities of international sport regulation should be taken into consideration.

SGB’s have traditionally demanded and enjoyed a wide autonomy regarding the enactment, application and interpretation of their own lex sportiva, that has been be defined “as the body of sports law generated by the sports movement and generally applied by CAS [Court of Arbitration for Sport” (Parrish 2012). It constitutes a self-contained and transnational legal system. Not without controversy, the question of the participation of athletes and teams in sporting competitions, whether national or international, is one of the issues in which this autonomy is clearly felt. But self-regulation doesn’t necessarily mean the complete absence of a, so to say, “sporting rule of law”. Lex sportiva instruments, regulations and rules emanating from SGB’s are adopted by the competent sporting authorities in accordance with the procedures contained in the Statutes or regulations of these organisations. In addition, regarding settlement of sporting controversies, the CAS was created “to take international sports disputes out of national courts and provide a highly specialized forum where those disputes could be heard and decided, quickly and inexpensively, according to a flexible procedure” (Reilly 2012). In brief, the decisions I referred to in the first paragraph of this post, and others of a similar nature, must be based on each organisation’s own rules. This legal justification can be based on the sports organisation’s more or less explicit commitment to respect human rights and international law (see for instance art. 3 of FIFA Statues) or on more specific rules. An example of the latter possibility is art. 83 of the Regulations of the UEFA Europa League. This provision gives UEFA Emergency Panel/UEFA President extraordinary and discretionary powers to make decisions in case of force majeure or other unforeseen circumstances.

We must also consider what the alternative was for the SGB’s. In terms of reputation, to remain oblivious to such an extremely serious situation under the cover of neutrality would most likely only have worsened their already battered image in the eyes of much of the public. Indeed, calls by various International Organisations and representatives of civil society for the SGB’s to base their governance in the values of democracy and human rights are not infrequent (see for instance PACE Resolution 2200 (2018), 24 January 2018, Towards a framework for modern sports governance).

Almost certainly, as has been suggested, CAS will in the future have to deal with complaints from federations, teams or athletes who have been affected by the measures referred to above. In fact, some of them have already made it public that they reserve the right to exercise legal actions (see here and here). These will undoubtedly be cases of extraordinary interest for all those interested in sports law. In the meantime, what seems obvious is that, at least in this occasion, SGB’s have decided to put the unrivalled allure of sport at the service of the defence of international legality.