Contention of Russia and FIFA on Russia's ban from World Cup
Introduction
1.????The whole world was shocked when Russia announced a “special military operation” to “demilitarise” Ukraine in the month of February.[1] Obviously, there were going to be far reaching consequences for Russia and their countrymen doing their jobs in various sectors. The whole annexation of Ukraine by Russia disrupted the global sports market to a large extent. One such repercussion of the military operation was faced by the Russian National Football Team, wherein FIFA banned Russia, the hosts of the last FIFA World Cup from further participation in the FIFA Qualifiers.[2] This would eventually mean that Russia would not be able to play in the FIFA World Cup. On 28 February 2022, the Bureau of the FIFA Council issued the following decision.
“All teams of the Football Union of Russia (FUR) or otherwise affiliated to the FUR are suspended from participating in FIFA competitions until further notice and until the situation improves sufficiently to allow teams of the FUR or otherwise affiliate to the FUR to be readmitted”.
2.????FIFA cited discretionary powers in order to impose sanction on FUR. Additionally, the Czech Republic, Poland and Sweden had refused to play the Russian National team in the 2022 World Cup qualifiers.[3]
Russia’s Submission before CAS
3.????The Football Union of Russia wasn’t going to go down so easily after facing the ban from FIFA. They duly appealed in front of the Court of Arbitration of Sport regarding the unreasonable ban vetted out to them. Relying on the International Olympic Union v. Russian Anti-Doping Agency case, in which the panel stated that “competing in the [Winter Olympic Games] 2022 is a unique experience, and the chance to win a medal and all that comes with that glory, is rare, of limited opportunity, and uncertain of repeating or being on offer again”, Russia wanted CAS to ensure that their players don’t miss out on a opportunity at the highest level .[4] It’s a commonly known fact that the FIFA World Cup is the biggest sporting event in the world which happens every four years.[5] It is considered “the cornerstone of all international competitions in football” where 32 of the world’s best teams compete for the coveted trophy. Getting omitted from such a tournament would have been a huge setback for the Russian team. Not only this, Russia would even lose rankings as given out by FIFA and lose major sponsorship deals that would have come their way.
4.????Football Union of Russia (FUR) tried to salvage their case by citing various provisions of the FIFA Statute. But mostly it would be looked as if they were clutching at straws in order to save themselves. The most important argument which FUR put forth was that the players should not face the wrath of FIFA because they were not at all related to the Government’s decision. Apart from that they cited Article 16(1) of the FIFA Statute, “Notwithstanding the foregoing, the Council may, without a vote of the Congress, temporarily suspend with immediate effect a member association that seriously violates its obligations”[6] ?and Article 13(1)(e) of the FIFA Statute which says that “Member Associations have the right to take part in competitions organised by FIFA”.[7] By citing these, they were attacking the Polish, Swedish and Czech Football Associations who had themselves taken the decision not to play against Russia. According to FUR, all these countries violate Article 14(1)(b) of the FIFA Statutes, “Member Associations have the obligation to take part in competitions organized by FIFA”[8]. FUR made a last-ditch attempt by adding that they are ready to play all these countries at a neutral location which would have taken care of the security threats.
5.????The final arguments of FUR included violation of their personality rights, economic freedom rights and fundamental principle of equal treatment. Naturally, FIFA passing the decision to ban Russia without the presence of any Russian officials should not have come as a shock considering the gravity of the situation.
FIFA’s Submission before CAS
6.????FIFA did not have to do much while presenting the arguments. The decision to ban Russia was more of a politically correct decision at that moment. In any case, FIFA relied on Article 34(1) - “Powers of the Council”, Article 38(1) - “The Bureau of the Council shall deal with all matters within the competence of the Council..” and Article 31 of the Regulations of the FIFA World Cup Qatar 2022[9] which says “Matters not provided for in these Regulations or any cases of force majeure shall be decided by FIFA”.[10] FIFA cited Yverdon Sport SA c. Association Suisse de Football (ASF) to say that an an act of war such as the invasion of Ukraine constitutes force majeure or at the very least, a situation not covered by the FIFA regulations.[11] It wasn’t only FIFA who had started to impose sanction on Russian entities. Many countries had stopped their trading, imports and exports from Russia’s top companies and businesses after the invasion.[12] FIFA stated that the air travel restrictions will anyways prevent Russia from playing abroad. FIFA also added that they had to respect Poland, Sweden and Czech Republic Football Associations’ decision and it was unlikely any country would be ready to host neutral matches with FUR being a party to it.
7.????Moreover, FIFA is a private, non-profit entity according to the Swiss Law. As a private international actor, FIFA escapes national regulations when it manages to impose its interests on the public authorities of its associated states.[13] FIFA used this power and cited BFC Daugavpils v. FC Kairat & Fédération Internationale de Football Association (FIFA) to add that private sports association had a wide autonomy and bigger margin of discretion.[14] With regard to the balance of interests debate, FIFA submitted that it has a prevalent interest in ensuring that its competitions are run smoothly, in the spirit of fair play and that their integrity is protected at all times.
Decision of the Court of Arbitration for Sport (CAS)
8.????The CAS, too had to take a morally correct stand in this whole fiasco. Russia was still playing the qualifiers when this ban was put on them. They still had to win some matches in order to qualify for the World Cup showdown. CAS pointed this out and said that Russia doesn’t have a “right” to play at the World Cup yet. The situation would have been different had they already qualified for the 32-nation competition. CAS used their previous judgement of skater Kamila Valieva who had qualified for the Olympics but still couldn’t represent her country.[15]
9.????FIFA had put a blanket ban on Russia and did not agree to the FUR’s suggestion of creating an accelerated procedure. Basically, even if CAS rules in favour of FUR, the missing matches could not have been replayed due to the blanket ban. Considering FUR’s argument that Russia’s ranking will go down if they are not allowed to play the World Cup, CAS deemed it baseless because there was no evidence that their ranking will improve if they are allowed to play. Rather, if they lost matches at the World Cup, the rankings would have deteriorated irrespective of their participation. Concerning the alleged loss of sponsorships, CAS takes the help of Al Masry SC v. Egyptian Football Association (EFA) and other cases and propounds that such injury is entirely pecuniary, and hence is never regarded irreparable because such damage may be repaired by monetary compensation.[16]
10.?Applying the “balance of interest” test, according to previous precedents, the CAS analysed that FUR’s interests don’t outweigh those of the opposing party or parties, and/or third parties. CAS is certain that even if matches are allowed to play, the opponents of the Russian team will forfeit the matches which would harm FIFA’s reputation to a large extent. CAS was also wary about the security issues that might arise if the Russian team was allowed to play. In the end, CAS ends the decision by saying that allowing the Russian Football team to play will hamper the integrity of the competitions. Therefore, all of FUR’s contentions got rejected by the CAS.
Conclusion
11.?It is very unfortunate that some of the popular Russian football players won’t be able to ply their trade at the FIFA World Cup, despite their vocal and inherent stand against such war. A World Cup happens every 4 years and the opportunity to represent your country is a matter of immense pride. A “military action” at this year and age isn’t going to help the cause of the Russian Football team. Even if they have valid grounds to be present at the World Cup, FIFA has to respect the decisions of other members who have denounced their relations with the FUR. FIFA, being a private body has discretionary powers to disallow Russia from playing in the World Cup. Meanwhile, CAS has given out a politically correct judgement because of the general reaction of the public towards Russian entities. It will be interesting to see how Russia, which is a sport powerhouse, manages to get out of this chaos which has been caused due to its government’s decision.
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[1] https://www.ejiltalk.org/ahead-of-the-game-sporting-sanctions-against-russia-following-the-invasion-of-ukraine/
[2] https://www.fifa.com/tournaments/mens/worldcup/qatar2022/media-releases/fifa-uefa-suspend-russian-clubs-and-national-teams-from-all-competitions
[3]https://www.espn.in/football/fifa-world-cup/story/4604644/czech-republic-join-polandsweden-in-refusing-to-play-russia-in-2022-world-cup-playoffs
[4]International Olympic Union v. Russian Anti-Doping Agency, CAS OG 22/08-10
[5] https://www.forbes.com/sites/kurtbadenhausen/2018/06/14/world-cup-2018-the-money-behind-the-biggest-event-in-sports/?sh=1b81c30b6973
[6] FIFA Statute, Article 16(1)
[7] FIFA Statute, Article 13(1)(e)?
[8] FIFA Statutes, Article 14(1)(b)
[9] Regulations of the FIFA World Cup Qatar 2022, Article 31.
[10] FIFA Statutes, Article 34(1), Article 38(1)
[11] Yverdon Sport SA c. Association Suisse de Football (ASF), TAS 2020/A/7065
[14] BFC Daugavpils v. FC Kairat & Fédération Internationale de Football Association (FIFA), CAS 2020/A/7252
[15] International Olympic Union v. Russian Anti-Doping Agency, CAS OG 22/08-10.
[16] Al Masry SC v. Egyptian Football Association (EFA), CAS 2012/A/2802; Africa Sports d’Abidjan v. Fédération Ivoirienne de Football (FIF) & USC Bassam, TAS 2012/A/2830; Legia Warszawa SA v. Union des Associations Européennes de Football (UEFA), CAS 2014/A/3703.