FIFA and UEFA’s suspension of Russian teams from a legal perspective
This article was originally published on Football Legal 30 June 2022.
FIFA and UEFA’s decisions
On 28th February 2022, as a consequence of Russia’s invasion of Ukraine four days earlier, FIFA and UEFA decided to:
“1) to suspend all Russian teams and clubs from participation in its competitions until further notice, and
2) to give a “bye” to the team of Poland to the final of “Path B” of the European playoffs for the 2022 FIFA World Cup, due to take place on 29 March 2022,”
Although the decision from FIFA and UEFA suspends all Russian teams from FIFA’s competitions, the far most important consequence of the decision was that Russia’s representative team was eliminated from the FIFA World Cup 2022. Russia, who finished as runners-up in their World Cup qualifying group, was scheduled to play Poland for a first playoff match 24th March. If they had won that match, they would play the winner of the match between Sweden and the Czech Republic 29th March. A consequence of the decision was that Poland was given a bye in the first match, which later played Sweden which won its first playoff match against the Czech Republic. As such, Poland qualified to the FIFA World Cup 2022 without playing the playoff match against Russia.
On 7th March, the Football Union of Russia (FUR) filed request for provisional measures, asking for a suspensive effect of FIFA and UEFA’s decision, and to reinstate the Russian teams in the competitions. In a media release from the Court of Arbitration for Sport (CAS) on 18th March 2022, CAS confirmed that the President of CAS’ Appeals Arbitration Division had rejected the request filed by FUR, and later published the grounds for the decision. It is important to stress that the CAS decision is limited to FUR’s request to stay, awaiting the outcome of the proceedings, and that FUR still has a chance of succeeding on the merits.
On 2nd May 2022 UEFA decided to suspend Russian national teams and clubs from its competitions, which in practice means that Russia’s national team for men is kicked out of UEFA Nations League for 2022/23, Russia’s national team for women is replaced by Portugal for Women’s Euro 2022 to be staged in England this summer. Further, the national team for women is also banned from the qualifiers for FIFA Women’s World Cup in 2023, and their U21 team will not participate in the European U21 Championship. In UEFA’s club competitions, hereunder UEFA Champions League, UEFA Europa League, UEFA Europa Conference League, UEFA Women’s Champions League and UEFA Youth League, no Russian clubs will be allowed to participate for the 2022/2023 season. Finally, the decision means that the bids submitted by the Football Union of Russia (FUR) to host the UEFA EURO 2028 or the UEFA EURO 2032 are declared as not eligible.
FIFA and UEFA’s decisions to suspend Russian national teams and clubs from participating in FIFA’s and UEFA’s competitions, as well as UEFA’s decision to declare FUR’s bid to host UEFA EURO competitions as not eligible, raise the question of to what extent FIFA and UEFA are entitled to suspend national football associations and its affiliated clubs from participation in football competitions.
The CAS decision to reject FUR’s request for provisional measures
The decision of the President of CAS’ Appeals Arbitration Division to reject FUR’s request for provisional measures is based on Article R37 of the CAS Code, which allows the Panel or, as in this case, the President of the Appeals Arbitration Division (until the case file has been transferred to the Panel) to consider an application for provisional or conservatory measures.
CAS has considered applications for provisional or conservatory measures on numerous occasions. In accordance with CAS jurisprudence, in particular CAS 2007/A/1370-1376 which has been referred to in many subsequent cases, an application for provisional or conservatory measures should, in general, be considered based on the following factors:
(a) whether the provisional or conservatory measures are necessary to protect the Applicants from irreparable harm (“irreparable harm” test): the Applicant must demonstrate that the requested provisional or conservatory measures are necessary to protect its position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage;
(b) whether the Applicant has reasonable chances to succeed on the merits (“likelihood of success” test): the Applicant must demonstrate that its position is not obviously groundless and that it has reasonable chances eventually to win the case;
(c) whether the interests of the Applicant outweigh those of the opposite party and third parties (“balance of convenience” test): the Applicant must demonstrate that the harm or inconvenience it would suffer from the refusal of the requested provisional or conservatory measures would be comparatively greater than the harm or inconvenience other parties would suffer from the granting of the provisional or conservatory measures.
The three requirements to grant provisional or conservatory measures (i.e. irreparable harm, the likelihood of success on the merits of the appeal and balance of interests) are cumulative.
The CAS decision to reject FUR’s request for provisional takes into consideration these three requirements, and states that FUR “may suffer irreparable harm”, that FUR’s “likelihood of success on the merits cannot be definitely discounted” and that “the balance of interests test tips decisively in favour of the Respondents”. In other words, FUR’s request for provisional measures was rejected as the President of CAS’ Appeals Arbitration Division found that the interests of FUR did not outweigh the interests of the respondents.
The legal basis for FIFA and UEFA’s decision to suspend Russian clubs and national teams
The CAS decision to reject FUR’s request for provisional measures reveals the legal basis that FIFA and UEFA have based their decision published 28th February 2022 upon. It must be assumed that UEFA’s decision published 2nd May is based on the same arguments.
In the abovementioned decision a summery of the parties’ positions are included. Regarding the requirement of likelihood of success on the merits, FIFA argues that pursuant to the FIFA Statutes Articles 34 and 38 the FIFA Council was competent to make the decision as an act of war, such as the invasion of Ukraine, constitutes force majeure, or at least a situation that is not covered by the FIFA regulations. In this regard, FIFA argued that in accordance with CAS jurisprudence, FIFA, as a private sports association has a wide autonomy and margin of discretion when deciding on matters related to the competitions it organises.
Further, FIFA claimed that “it is an essential interest of FIFA, as the event organizer of the [World Cup], that the calendar of the ongoing preliminary competition is fully respected”, and that the suspension of Russia’s national team is necessary to avoid that the situation affects efficient organisation and smooth running of the competition. In this regard, FIFA argued that if Russia’s national team was not suspended, three factors would affect an efficient organisation and smooth running of the competition. Firstly, the war had created air travel restrictions and other international sanctions that were likely to prevent the Russian teams from playing abroad. Secondly, the football associations of Poland, Sweden and the Czech Republic had decided that they would not to play against Russia in the playoffs, and FIFA argued that these decisions had to be respected by FIFA, as not respecting these decisions would have led to Russia being automatically qualified for the World Cup without having played a match in the playoffs. Thirdly, FIFA argued that it was unlikely that any venue would agree to host the FUR’s teams “considering the security risks that hosting a match under these circumstances would entail”, and further that allowing FUR’s teams to compete “creates an enormous security risk for all participating teams and delegations (including the FUR’s), as well as for officials, referees and other persons involved in the organisation of such matches, regardless of where the relevant matches are held”.
It is worth noting that whilst FUR argued that it had not seriously violated its obligations and that the suspension therefore was in breach of the FIFA Statutes Article 16, which states, inter alia, that the FIFA Council may “temporarily suspend with immediate effect a member association that seriously violates its obligations”[1], FIFA argued that the FIFA Statutes Article 16 were not applicable to the matter as FUR itself was not suspended, but rather the FUR’s national teams were prevented from participating in FIFA competitions. In this regard, FIFA argued that pursuant to the FIFA Statutes Article 13 the right to participate in FIFA competitions is “subject to other provisions in these Statutes and the applicable regulations”, and that member’s rights can be limited in cases of force majeure “and when the organisation of the competition in question is jeopardised”.
FIFA also claimed that the decision to suspend Russian clubs and national teams is not a political decision and does not violate political neutrality, and that the decision is not a sanction and consequently the principles of proportionality, equal treatment and the right to be heard do not apply.
UEFA’s arguments in the decision for preliminary measures to a large degree rely on FIFA’s position. However, UEFA’s decision published 2nd May, where it decided to suspend Russian national teams and clubs from UEFA’s competitions, will have to be based on UEFA’s regulations. Although the legal basis for this decision has not yet been published, the decision may be based on the UEFA Statutes Article 65, which gives the UEFA Executive Committee the power to “to decide on all matters not covered in these Statutes”. In this regard, the UEFA Executive Committee may also lean on the Statutes Article 2 (2) which provide that “UEFA shall seek to achieve its objectives by implementing any measures it deems appropriate”, hereunder taking decisions, seen in connection with the objectives of UEFA, defined in Article 2 (1), which, inter alia, states that UEFA shall “promote football in Europe in a spirit of peace”
FUR’s possibility to challenge FIFA and UEFA’s decisions
Decisions issued by the FIFA Council and the UEFA Executive Committee may be appealed to CAS as CAS is recognized as the appeals body for decisions passed by FIFA and UEFA, pursuant to Article 57 (1) of the FIFA Statutes and Article 62 of the UEFA Statutes. In this regard it is worth noting that pursuant to the UEFA Statutes Article 34 the UEFA Appeals Body does not have jurisdiction to hear appeals against decisions from the UEFA Executive Committee, and that pursuant to the FIFA Statutes Article 53 the FIFA Appeals Committee cannot hear appeals against decisions from the FIFA Council. An appeal from FUR may therefore be submitted directly to CAS. Whilst the decision issued 28th February is already appealed to CAS, FUR may also appeal the UEFA decision issued 2nd May to CAS.
As seen in the CAS decision where FUR’s request for provisional measures was rejected, the case raises some interesting legal issues. The lack of clear regulation and comparable jurisprudence make the outcome of the proceedings before CAS uncertain, or as stated by the President of CAS’ Appeals Arbitration Division in the decision to reject FUR’s request for provisional measures, FUR’s “likelihood of success on the merits cannot be definitely discounted”. If FUR’s appeal with regards to the decision issued by FIFA will succeed on the merits, i.e. that FIFA’s decision to suspend Russian teams and clubs from participation in FIFA competitions is set aside, it is unclear what the consequences will be, as the playoffs for the FIFA World Cup 2022 have been concluded. A possibility is that such a decision could lead to a need for replaying the playoff matches, which for all parties would cause challenges with regards to completing the playoffs within the international windows, taking into consideration international club and national team competitions, in time for the scheduled start of the FIFA World Cup 2022 21st November.
Disclaimer: The author is a CAS arbitrator and a member of UEFA’s Legal Committee. The opinions are the author’s own and do not reflect the views of CAS or UEFA.
[1] Article 16 has been used to suspend FIFA member associations, such as the football associations of Pakistan and Chad.
