Tim, Kara and Tanveer were law student scholars, participating in the WS Society Summer Scholarship programme during August 2022. This article summarises their research and presentation.
Politics and Sport
Since the Russian invasion of Ukraine on the 24th February 2022, the politicisation of sport has been cast into a radically new light. The necessity to limit the extent of Russian global influence while recognising the individual freedom for respective athletes to participate in professional sport, has raised challenging questions among sporting bodies and regulators as to whether Russian athletes should compete on the international stage. The significance and complexity of this debate is emphasised when we consider that sporting endeavour is largely entrenched within a broadly definable social context. Indeed,
“ George Orwell famously depicts the clash of international sport as ‘War minus the shooting’”
Athletes are perceived as national representatives and accordingly, international sport is charged with a unique sense of state symbolism that inherently generates preconditional scope for political propaganda. Consequently, sporting success operates with the potential to advance political objectives, enhance state legitimacy and bolster national prestige on the world stage. In response to the widespread sporting bans on Russian athletes, there have been a spectrum of responses. The Russian Olympic Committee (ROC) stated that sporting bodies should ‘refrain from the politicisation of sport’, while Lord Sebastian Coe asserted that,
“…imposing sanctions on athletes because of the actions of their governments goes against the grain”
The inherent political symbolism embedded within international sport, necessitates a regulatory response that effectively weighs a range of competing interest in response to the Russian-Ukrainian conflict.
FIFA
In February 2022, FIFA and UEFA issued a statement in response to Russia’s invasion of Ukraine and subsequently banned Russian teams. The legal basis for any FIFA or UEFA ban arises from their respective regulatory statutes. Article 57(1) of the FIFA statutes and Article 62(1) grant exclusive appellatory jurisdiction to CAS as an independent arbiter. While the CAS Code provides that respective sporting regulation will be applied in litigation, recourse to Swiss law will operate subsidiarily in conjunction with the general principles of international law.
While FIFA is mandatorily obliged to ‘promote cultural and humanitarian values’, Article 16(1) provides scope for the temporary suspension of a ‘member association that seriously violates its obligations’. In the Football Union of Russia’s (FUR) appeal before CAS, FIFA asserted their institutional capacity to self-define FIFA’s policies and values, and the corresponding legal necessity to afford them ‘wide autonomy and margin of discretion’. Contrarily, FUR relied upon Article 4 of the FIFA statutes to contest that FIFA had breached their duties of non-discrimination, equality and political neutrality, as well as their right to participate in sporting competitions under Article 13(1)(e). In the present circumstances, CAS dismissed the appeal and upheld the banning restrictions.
UEFA is equally permitted to adopt FIFA-based reasoning and exclude a member if they have been excluded already by FIFA. While there remains limited scope for future legal challenges under grounds of proportionality; a right to be heard and inconsistent decision-making, FIFA and UEFAs sanctioning of FUR’s right of membership maintains legal standing in their mandatory commitment in promoting humanitarian objectives.
In conjunction with the ECHR, there remains a right to be heard before CAS (B V FINA; Menarini Diagnostics v Italy). Judicial recourse to the Swiss Federal Tribunal (SFT) is permitted on limited grounds such as a lack of jurisdiction, violation of proceduralism or incompatibility with public policy. The standard rules of European law concerning further appeals beyond the SFT apply including the necessity to exhaust domestic remedies and breaching specific convention rights. Critically, the broader underlying jurisprudence of CAS, requires that ‘the severity of the sanction must relate to the gravity of the wrongdoing displayed’. FUR may therefore contend that FIFA may have opted to instigate less restrictive and more proportional sanctions with further consistency in application (Palestine Football Association v FIFA).
The Olympics
In a comparable sense to the rest of the sporting sphere, the International Olympic Committee (IOC) were left with a complex task in navigating an appropriate sanctioning regime against Russian athletes. The dilemma they faced was intensified by the IOC Fundamental Principles which specifies that
“no discrimination is allowed against a country or person on the grounds of race, religion or political affiliation.”
If the IOC were to instigate an Olympic ban against Russian athletes and teams, they would be visibly taking sides in a non-sporting issue, breaking their self-proclaimed principle of political neutrality, and ultimately, harming athletes with potentially no political affiliation with the Russian regime. Contrarily, if the IOC omitted to act, they may be exposing themselves to widespread political and sporting criticism with the potential for mass boycotts.
On the 25th February 2022, the IOC recommended the exclusion of Russian athletes, teams, and officials, from sporting competitions with the possibility of athletes competing neutrally without colours, flags or anthems. The rationale for this decision was firstly, to provide fairness to Ukrainian athletes who were unable to compete as a result of the conflict, and secondly, to ‘protect the integrity of global sports competitions and for the safety all participants’.
Naturally, the Russian Olympic Committee has challenged this recommendation on the grounds that there remains a lack of legal basis for the decision, the recommendation itself was externally influenced by factors ‘far from the ideals of sport and Olympic values’ and ultimately, the effect of such a recommendation entails the discrimination of Russian athletes simply ‘on the basis of nationality and citizenship’. This accords to the broader jurisprudence of CAS.
Intriguingly, while CAS is not necessarily bound by a strict doctrine of precedential decision-making, there are numerous historical instances of Olympic bans enforced in an attempt to secure national compliance with the Olympic Charter. For example, due to the apartheid policy on racial segregation, the IOC instigated a ban on South African athletes competing at the 1964 Tokyo Olympics. This ban lasted until apartheid was repealed in 1991. While the purpose of an Olympic ban is fundamentally intended to secure compliance, in this particular case, the banning regime did not catalyse the amendment of sporting practices. Manifest transformation was the result of the downfall of apartheid itself. In many ways, an Olympic ban therefore appears a largely ineffective mechanism to amend discriminatory sporting practices and resultingly operates to harm innocent athletes without achieving the desired end. Thus, the preferred approach of the IOC is to work alongside NOCs where possible to amend their practices and achieve favourable outcomes.
Wimbledon
In April 2022, the AELTC announced that all Russian and Belarussian players would be banned from participating at Wimbledon this year. Both the ATP and the WTA condemned the decision as inconsistent with fundamental principles of the tour – that eligibility should be based solely on merit. In response to the implementation of such a ban, Wimbledon has been stripped of all ranking points on the basis that the decision “undermines the integrity” of the ranking system. Fo some, the championship had been reduced to an exhibition event, with
“Naomi Osaka, labelling participation as ‘pointless’. ”
Whilst team competitions, such as the Olympic Games, are often a source of state prestige and power, individual sports must be distinguished. This distinction between individual and team may have important legal implications, specifically with regards to proportionality. Considering the underlying CAS jurisprudence, any measure adopted must be both capable of and necessary to achieve the aim (Lyukman Adams et al. v. IAAF). Any impact on individuals affected must be balanced against the overall interest in pursuing the aim. Whilst it is widely accepted that limiting Russia’s global influence is a legitimate aim, there is doubt as to whether a blanket ban across all Russian individuals is a proportionate means of achieving this.
This raises complex questions as to what extent the actions of a national government can be attributed to individuals. One would argue that excluding all Russian individuals in response to a conflict in which they play no part is ‘draconian’ and unproportionate. This notion is reinforced by considering the approach of the ATP who have banned participation of national teams, for example in the Davis Cup, yet have allowed individuals to compete as ‘neutrals’, or the FIA’s approach of allowing Russian individuals to compete in motorsport provided they do so under a neutral flag. Both represent an effort to limit Russian influence without severe interference with the freedom of individuals
The ban raises issues of potential discrimination, however, it is unlikely that any player could seek redress under the Equality Act 2010. The protected characteristic of race is defined under s.9 as encompassing nationality, ethnic origin and colour. Whilst it’s recognised that Russians have been treated less favourably than non-Russians on grounds of nationality this will not be unlawful as the decision falls beyond the scope of employment. For employment status to be engaged, under s.83(2), a contract of service must exist rather than a contract for services.
Interestingly, it’s likely that a similar ban introduced at the Australian open would be unlawful under corresponding Australian legislation. Such a ban would violate s.9 of the Racial Discrimination Act 1975 as it has the ‘effect of nullifying the enjoyment and exercise of their freedom’ to compete in the sport of tennis. However, this is dependent on such participation being characterised as a ‘cultural activity’. Alternatively, redress may be sought under the employment provisions in s.15, which includes contracts for services, unlike in the UK. A challenge may also be brought under s.71 of the Victorian Equal Opportunities Act 2010 which specifically prohibits discrimination in sport. This provision protects from discriminations based on race as well as political belief.
Contracts and Sponsorship
Over recent years, Russian companies have played a central role in the sponsorship of international sporting events. In response to Russia’s aggression against Ukraine, many clubs and federations have sought to end relationships with Russia and Russian sponsors. Formula 1 has stripped Russia of the Sochi Grand Prix, while
“UEFA has terminated its sponsorship contract with Russian oil giant, Gazprom, which was worth around £80 million.”
These developments raise important questions regarding the legal basis of right holders to terminate such contracts.
Depending on the drafting of the contract, there may be various termination options, such as Force Majeure. This is particularly relevant in relation to events which have been cancelled – however it is doubtful as to whether it is physically impossible for Russia to host competitions. Additionally, ‘damage to reputation’ clauses may allow right holders to end relationships with Russian companies without incurring liability. Difficulties may arise where such a clause refers to ‘the conduct of the sponsor’ bringing such damage, as this would require the actions of government to be attributed to a separate entity. Ideally, ‘negative impact on reputation flowing from the sponsor’ is all that would be required; however, this is rare in practice due to the broad discretion conferred on the right holder.
In the absence of any of the above, a right holder may be able to pursue a common law mechanism of avoiding liability including the doctrine of frustration, as well as illegality, which may become relevant where sanctions make performance of the contract illegal. A possible situation which may arise would be where western banking sanctions against Russia makes sponsorship payment to the right holder illegal. Terminating sponsorship agreements with Russian companies is not straightforward for right holders, hence many may simply ‘walk away’ by unilaterally tearing up the agreement and removing any branding from venues or club kits. It goes without saying that comes with substantial risks – Russian sponsors may claim for repudiatory breach and therefore seek damages. An illustration of this point would be Formula one team Haas’ ongoing dispute with a previous Russian sponsor.
Conclusion
In summary, the international sporting community has joined the rest of the world in condemning Russia’s invasion of Ukraine, by introducing sanctions against athletes in an effort to limit Russian influence. But ultimately, it is yet to be seen whether such bans will stand up against notions of non-discrimination, however as outlined above, the scope for any challenge is narrow.