CAS, Political Neutrality, and the Football Union of Russia: Justice Denied?
This post has been authored by Mr Keshab Roy Choudhury.
Keshab Roy Choudhury is a fourth-year student of B.A. LLB. at OP Jindal Global University. He is interested in public law, commercial law and its intersections with sports.
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On February 28th 2022, the Bureau of the FIFA Council (‘FIFA’) and the UEFA Executive Committee (‘UEFA’) suspended Russian football teams from participating in all competitions organized by FIFA and UEFA till further notice. This was done as a response to the Russian invasion of Ukraine. The Football Union of Russia (‘FUR’) promptly approached the CAS to grant conservatory measures per Rule 37 of the CAS Code. Rule 37 does not specify the types of provisional measures that are granted. However, scholars have noted[i] that the measures granted under Rule 37 typically represent those granted in international commercial arbitrations, namely, 1) measures concerning the preservation of evidence, (2) injunctions, (3) security for payment, (4) security for costs, and (5) provisional payment. The FUR here requested an interim injunction on the decisions taken by the governing bodies until the disputes are adjudicated on their merits.
The CAS in 2022/A/8708 FUR v FIFA et al. and 2022/A/8709 FUR v UEFA et al. denied the FUR’s requests primarily on the ground that the interests of the governing bodies in executing their impugned decisions far outweighed the interests of Russian teams participating in their tournaments. Both cases will collectively be referred to as the ‘Suspension Decisions’ as the CAS utilizes analogous reasoning in both cases. In this piece, I will primarily argue that the CAS' reasoning in the Suspension Decisions suffers from inadequacy as it fails to consider the statutory value of neutrality that FIFA and UEFA claim to propagate. Discussions pertaining to the desirability of political neutrality in sport and the legality of FIFA and UEFA's merits decisions are beyond this piece's scope.
CONSERVATORY MEASURES AT CAS
For granting or rejecting a conservatory measure under Rule 37, three essential tests are considered cumulatively: 1) irreparable harm to the applicant; 2) the likelihood of success on merits; 3) whether the applicant’s interests outweigh those of the respondents.
To prove irreparable harm, one must show that the measure is necessary to protect the applicant's position from damage that would be impossible or difficult to remedy later. The alleged harm cannot be merely hypothetical and must constitute real, possible harm. In 2015/A/3925 Traves Smilke v JADCO, the CAS held that suspensions could cause irreparable harm if the athlete cannot compete in qualifying events necessary to participate in the sporting competition. To prove the likelihood of success, in 2008/A/1453 Elkin Soto & FSV Mainz v CD Caldas, it was held that the chance of winning must be reasonable, i.e. it cannot be discounted and must not be based on a frivolous cause of action.
The CAS in both Suspension Decisions conceded that there was a likelihood of irreparable harm as Russian teams would lose the opportunity to participate in qualifying events for significant sporting events such as the 2022 World Cup and the 2022 Europa League. It also held that the success of the FUR on merits should not be discounted. However, both Decisions ultimately hinged on the balance of interests test, which the CAS deemed the FUR to have failed. This case is an outlier because it is noted that in non-doping cases which involve the suspension of athletes prior to a major competition, the CAS, based on precedent, [ii] has favoured the interests of the athletes over the sporting federation and granted interim relief.
BALANCE OF INTERESTS TEST AND THE CAS’ INADEQUATE REASONING
As per the balance of interests test, the applicant must show that the disadvantage the applicant suffers due to the respondent's decision outweighs the respondent's interest in enacting the said decision. The RUF made the following essential arguments: 1) the suspensions by FIFA and UEFA were ultra vires, and later reinstatement of Russian teams in the competitions would be difficult; 2) member associations had a duty to be politically neutral as per the FIFA and UEFA statutes; 3) UEFA and FIFA would benefit by RUF's participation as sporting merit would be preserved; 4) games involving Russian teams could be conducted on neutral venues, without spectators and with increased security, for which the RUF would pay additional costs.
The CAS rejected the arguments of the FUR and noted that FIFA and UEFA had a legitimate interest in ensuring the smooth running and integrity of their competitions. It noted that several member associations of the respective organizations had decided to boycott playing any Russian representative teams due to the Russian invasion. If Russian teams were allowed to play, it would result in mass forfeits by member associations. Thus, sporting integrity would be threatened. The CAS also observed that the availability of neutral venues could not be guaranteed as several member associations and countries had condemned Russian actions in Ukraine. Even if neutral venues are found, the safety and security of the players and other stakeholders could not be guaranteed, even with increased security measures with no spectators. On these grounds, the CAS ruled that the balance of interest was more substantial in favour of FIFA and UEFA.
The CAS’ Suspension Decisions did not engage, even on a prima facie level, with the principles of political neutrality and nondiscrimination based on nationality that are observed by FIFA, UEFA and their member associations. Political neutrality necessitates that the sport governing body is impartial to political questions on the national/international level. It is also a Fundamental Principle of Olympism and is enshrined in Article 1.2 of the IOC Code of Ethics. The neutrality principle helps ensure the autonomy of the sport by weeding out politics and tries to convince persons who would otherwise be political enemies to become friends over a shared passion, promoting peaceful co-existence. The values of neutrality and nondiscrimination need to be complied with and are enshrined in Articles 4, 15(a),(b),(c), 23(a),(b),(c) of the FIFA Statutes and Articles 1 and 2(b) of the UEFA Statutes. Astonishingly, neither FIFA nor UEFA kept these in mind before making their decisions despite having emphasized neutrality’s importance in the past.
In the present instance, the impugned decisions of FIFA and UEFA were premised on the heinous and illegal nature of the Russian State’s military intervention in Ukraine, not because the FUR (which is an independent body from the Russian State) or any of its athletes had violated obligations under any governing statutes. By refusing to ground their decisions in legitimate legal reasoning and basing them primarily on a geopolitical event in which athletes have no part, the FIFA and UEFA’s decisions directly discriminate against Russian athletes by barring them from participating in football competitions due to their nationality. In 2017/A/5306 Guangzhou Evergrande FC v AFC, the CAS, within the context of hate speech, held that athletes had a clear right to nondiscrimination on nationality. Nondiscrimination guarantees are enshrined in Principles 4 and 6 of the Olympic Charter. By refusing to act, the CAS has legitimized the discriminatory political decisions taken by the football governing bodies.
Through its inaction, the CAS has also prejudiced Russian football players’ right to practice their sport freely. In TAS 2012/A/2720 FC Italia Nyon et al., the CAS held that an athlete had the freedom to exercise a sporting activity of their choice and also had the right to derive fulfilment from the same. Nevertheless, this right has been categorically denied to Russian football athletes by banning them from participating in football competitions simply for being Russian.
Had the CAS engaged with the political neutrality principle, FIFA and UEFA would have to fulfil their statutory obligations as per Article 5 of the FIFA Statutes and Article 2(b),(i),(j),(o) of the UEFA statutes respectively to promote friendly relations amongst member associations. In emphasizing neutrality, the CAS could have held that member associations had no legal right to pull out of competitions in which Russian representative teams participated. Finding neutral venues to host the Russian teams and arranging appropriate security measures without prejudicing athlete rights could have been easier. Further, there was no need for either UEFA or FIFA to suspend all Russian representative teams outrightly. FIFA and UEFA could have allowed Russian teams to participate as neutrals. The February 28th Resolution of the IOC Executive Board allowed Russian athletes and teams to participate as neutral parties in competitions. This has been followed by governing bodies such as the FIA, the International Tennis Federation, the French Tennis Federation, the International Judo Federation and the International Chess Federation. These decisions are a middle path in that they ensure that athletes are not unjustly punished for the actions of their governments while allowing them to participate and spread messages of peace. Unfortunately, neither FIFA nor UEFA treaded this middle path.
This piece has discussed the conditions required for granting provisional measures and the CAS’ holdings in the Suspension Decisions, particularly its analysis vis-a-vis the balance of interests. The CAS’ verdicts could have been different had it considered the principle of neutrality while considering the balance of interests test. Instead, the CAS' failure to direct FIFA and UEFA to follow their statutory principles of neutrality has privileged international politics over athlete rights, condemning Russian athletes for simply being Russian. Hopefully, the CAS will rectify its mistake in the final award on the case's merits. However, by that time, it may already be too late.
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Cite as: Keshab R. Choudhury, CAS, Political Neutrality, and the Football Union of Russia: Justice Denied?, Extra-Cover, The Sports Law Blog of India (16th Sep 2022), Accessed at https://www.extra-cover.org/post/cas-political-neutrality-and-the-football-union-of-russia-justice-denied [Date of Access].
End-Notes: [i] Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (1st edn, Wolters Kluwer 2005) 208. Also see, Ian Blackshaw, ‘ADR and Sport: Settling Disputes Through the Court of Arbitration for Sport, the FIFA Dispute Resolution Chamber, and the WIPO Arbitration and Mediation Centre’ (2013) 24(1) Marquette Sports Law Review 1, 12. [ii] Ian Blackshaw & Thilo Pachmann, ‘CAS Provisional and Conservatory Measures and Other Options To Be Granted Interim Relief’ in Antoine Duval & Antonio Rigozzi (eds), Yearbook of International Sports Arbitration 2015 (Springer Asser Press 2016) 103; See also, Antonio Rigozzi & Erika Hasler, ‘Sports Arbitration Under the CAS Rules’ in Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner’s Guide (1st edn, Wolters Kluwer 2014) 941.