Legal Justification for FIFA and UEFA’s Ban on Russian National Football and Club Teams

Russia’s illegal invasion of Ukraine has invited global censure. States have resorted to sanctions against Russian institutions and individuals. Response by non-state actors includes MNCs suspending their operations, boycotts, condemnations, cancellation of cultural events and banning of Russian athletes and teams from participating in international sports.

On 28 February 2022, FIFA and UEFA, the global and European governing bodies of football, issued a joint statement. They decided that “Russian teams, whether national representative teams or club teams, shall be suspended from participation…until further notice.” This decision impacts the men’s team chances of qualifying for the World Cup 2022, the women’s team participation in the Euro 2022 and the participation of Russian clubs in the continental club competitions.

Football Union of Russia (FUR) has preferred two appeals against the suspensions before the Court of Arbitration for Sport (CAS). FUR had also sought a stay on the suspensions. CAS has refused to stay both UEFA and FIFA’s decisions. In its media statement, FUR has put forth three arguments against the ban: (i) FIFA/UEFA had no legal basis to suspend Russia; (ii) FUR’s fundamental right to put forth a defence was violated; and (iii) lesser restrictive measures were not considered. I will discuss these arguments and the legal justification that may be employed by FIFA/UEFA in defending their suspensions at CAS along with a discussion on the jurisdiction of CAS and the applicable laws.

Jurisdiction of CAS

CAS is an independent body that settles sports disputes through arbitration. Article 57 of the FIFA Statutes and Article 62(1) of UEFA Statutes grant jurisdiction to CAS to hear appeals against any decision of FIFA and UEFA, respectively. The decision to suspend Russia was adopted by the FIFA Council and the UEFA Executive Committee, the respective highest decision-making bodies of both institutions. Thus, CAS has jurisdiction to hear an appeal from the decision to suspend Russia.

Applicable Law before CAS

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). The applicable regulations in this case would be FIFA Statutes and UEFA Statutes which would form the primary applicable law. The subsidiary applicable law would be Swiss law as provided for explicitly in the FIFA Statutes (Article 56(2)) and UEFA Statutes (Article 64). Given that FUR is claiming a violation of its fundamental rights as a member association, this case will also require application of general principles of human rights, European and international law, which is a common practice before CAS.

In Club Raja Casablanca v FIFA, the CAS tribunal 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.

Legal Basis for FIFA/UEFA’s Suspension

CAS recognises that sport governing bodies (SGBs) can sanction member associations in accordance with applicable rules and general legal principles (Amadou Diakite v FIFA, para 20). Admittedly, FIFA Statutes do not confer an explicit power to suspend a team for reprehensible actions of the national government. Article 16 of the Statutes allows FIFA to “temporarily suspend…a member association that seriously violates its obligations”. However, FIFA is unlikely to rely on this provision as FUR is legally distinct from the Russian government. FUR may not be said to have violated its obligations due to the use of force by Russia.

Instead, FIFA may rely on Article 2(a) of the Statutes which includes FIFA’s objective of promoting football in the light of its unifying, cultural and humanitarian values. Of further relevance may be FIFA’s commitment to: (i) respect and promote internationally recognised human rights (Article 3); (ii) non-discrimination against a country or group of people (Article 4); and (iii) promotion of friendly relations between member associations, and in society for humanitarian objectives (Article 5). As part of its Human Rights Policy, FIFA has also committed to respect human rights in accordance with the UN Guiding Principles on Business and Human Rights. It has obligated itself to identifying, addressing, and mitigating adverse human rights impacts.

These humanitarian commitments, seen in light of the adverse impact on the rights of millions due to the Russian aggression provides the legal basis for FIFA to act against FUR. FIFA is likely to argue that these objectives and commitments would have been compromised if Russia continues participation in football. FIFA could also rely on International Olympic Committee’s (IOC) call to SGBs to prevent Russian participation in sports. IOC’s call was based on Russia’s breach of the Olympic Truce. The UN General Assembly adopts Olympic Truce before Olympics, as a consequence of which all UN members (including Russia) agreed not to engage in hostilities before, during and after the Olympics. The Truce was expected to last till 20 March 2022. Russia’s breach of the Truce and IOC’s call could serve as additional legitimate grounds for FIFA.

While this may provide the substantive basis for an action against Russia, the equally important question is where does FIFA derive the authority to sanction an entire nation and its clubs? The answer may be found in residual powers of the FIFA Council. Article 34(12) of the Statutes provides that the FIFA Council “shall deal with all matters relating to FIFA that do not fall within the sphere of responsibility of another body”. Further reliance may be placed on FIFA Governance Regulations. Article 8(2) of the Governance Regulations detail the powers and duties of the FIFA Council. It has a duty to deal with football’s “political, economic and social status” and define FIFA’s overall strategy, including in political matters.

UEFA can adopt FIFA’s reasoning by resorting to Article 8(3)(d) of its Statutes which provides that a member association may be excluded if it has been excluded by FIFA. UEFA may also place reliance on its objectives which includes cooperation with FIFA and promotion of football in a spirit of peace and understanding (Articles 2(1)(b) and (m)). Article 2(2) of the Statutes gives UEFA the power “to achieve its objectives by implementing any measures it deems appropriate”. Moreover, Article 65 grants residual powers to the UEFA Executive Committee to decide on matters not covered in the Statutes, in accordance with relevant FIFA regulations or “according to right and justice”.

Thus, FIFA/UEFA’s interference with FUR’s right of membership had legal basis in their commitments to humanitarian objectives and their residual powers to impose sanctions to fulfil their commitments.

FUR’s right to present a defence

FIFA and UEFA statutes do not provide an explicit right to be heard in cases of extraordinary suspensions. Indeed, Swiss law and general principles of international law do contemplate a right to be heard in administrative decision making which has an impact on the rights of others. In B v FINA, having considered the Swiss law on the subject, the CAS tribunal concluded that “the virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance fade to the periphery” (para 8). European Court of Human Rights reached the same conclusion when considering compliance of administrative decisions with Article 6 (right to fair hearing) of the ECHR (A. Menarini Diagnostics v Italy, Case No. 43509/08, para 59).

Article R57 of the CAS Code allows the tribunal to hear a case de novo. Thus, the CAS appeal would serve as a cure for procedural defect (if any) that may exist in relation to FUR’s right to be heard (Mu-yen Chu v IOC, paras 85-88).

Necessity and Proportionality of the Measure

International legal principles and CAS jurisprudence require that “the severity of a penalty must be in proportion with the seriousness of the infringement” (W v FEI, para 31). Penalties must be necessary to achieve the aim and graduate in accordance with the seriousness of offence.

FUR may argue that FIFA/UEFA could have opted for less restrictive measures. FIFA had earlier decided by way of initial measures, to allow Russia to compete under the name of FUR (instead of Russia) and without using national symbols. FIFA/UEFA would argue that the continued aggression in Ukraine compelled them to impose a severe penalty. Furthermore, Russian teams and athletes have been serving a two-year ban (expiring in December 2022) for state sponsored doping. The ban allows Russian teams to compete as neutrals. Unarguably, invasion of a sovereign state is far more egregious than doping. Thus, an effective sanction needed to be much more drastic. In light of the severity of the situation, FIFA/UEFA could be said to have applied their discretion to impose a complete suspension.

FUR may argue that FIFA has been inconsistent in application of its discretion while applying sanctions. It may cite instances when other countries have indulged in use of force or similar activities. CAS decision in Palestine Football Association v FIFA may provide a glimpse of FIFA’s response. In that case, the appellant had challenged FIFA’s decision not to impose sanctions in relation to an Israeli-Palestinian dispute. The tribunal dismissed the appeal by stating that the refusal to impose sanctions was a valid exercise of FIFA Council’s discretion (para 111). Given the extreme severity of the situation, FIFA/UEFA will argue that the suspension was necessary as well as proportionate.

Conclusion

FUR’s claim that the suspensions violated its fundamental rights is unlikely to stand scrutiny before the CAS. FIFA and UEFA had valid legal basis to impose the suspension under their respective statutes in pursuance of their humanitarian commitments. Any violation of a right to be heard is cured by the CAS appeal and their decision was necessary and proportionate in the circumstances.