FIFA’s legal grounds against Russia

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FIFA’s outstanding decision to ban Russian teams from international football, and especially from the World Cup, is currently contained in a four-sentence press release and nowhere else.

This was done by the Bureau of the FIFA Council, a body of seven people authorized to take urgent action such as that in response to Russia’s invasion of Ukraine. But his brevity left more questions than answers and made him vulnerable to opposition. The Russian Football Union said on Monday it was a “reserve[s] the right to challenge the decision … in accordance with international sports law. “RFU, which governs football in Russia, can appeal to the Court of Arbitration for Sport (CAS), which can overturn the removal.

FIFA staff are aware of this possibility. Earlier, the RFU said it “sees no legal grounds to cancel” Russia’s playoff match on March 24 against Poland in the World Cup qualifiers. Many legal experts have told Yahoo Sports that there is no obvious regulatory framework for a total ban. They noted that the FIFA statement did not refer to a specific status or precedent.

“FIFA has been left wide open to come up with a justification later,” said Steve Bank, a UCLA professor who teaches international sports law.

Instead, FIFA seems to have responded to growing pressure from potential Russian opponents, the recommendations of the International Olympic Committee and the international community, which was expecting to take a stand.

This position is widely praised, but in order to defend it in court, FIFA may have to recognize what the position really is: exercising political discretion, which changes FIFA’s long-standing commitment to political neutrality.

What is FIFA’s strongest legal argument for banning Russia?

FIFA’s statutes are 92 pages long and do not explicitly give it the power to punish teams for unsportsmanlike conduct by their national governments. In fact, the regulations state that “FIFA remains neutral in matters of politics and religion.” Legal experts believe that the RFU will cite these statutes at the CAS hearing and argue that a war for which it is not responsible should not be a reason to stop.

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Article 16 of FIFA gives the FIFA Council the power to “temporarily suspend with immediate effect a member association which is in serious breach of its obligations”, but the RFU will claim that it, as a football federation, has not breached any obligations. In addition, FIFA’s ban was aimed at “all Russian teams” and not at the federation itself, which is an indication that Article 16 will not provide a legal basis.

The Bank and others believe that the most applicable statute is Article 3, which since 2016 states that “FIFA is committed to respecting all internationally recognized human rights and will seek to promote the protection of those rights.” FIFA, the Bank said, could argue that sanctioning Russia is in line with its commitment to promoting human rights, such as freedom and peace.

Gianni Infantino and FIFA have decided to remove Russia from the World Cup. They may soon have to defend it by law. (Photo by Alexei Nikolsky \ TASS via Getty Images)

In a vacuum, this is a logical argument. But as the Bank points out, “I think people would probably say it’s hypocritical.” They would point to any number of human rights violations that FIFA not only failed to address, but implicitly helped. They would cite the 2018 and 2022 Men’s World Cups in Russia and Qatar as events that clear the image of regimes accused of countless violations.

Some cite other wars, such as the Syrian civil war or the United States invasion of Iraq, which have been internationally condemned but never addressed by FIFA.

However, it seems unlikely that this will remain in court, Bank said. He pointed to the 2018 CAS decision, which, while not analogous, is the closest thing to existing precedent. The Palestinian Football Federation has challenged FIFA over its refusal to act on the Israeli-Palestinian dispute. In rejecting the Palestinian complaint, the CAS Commission referred to the “discretion” of the FIFA Council, essentially acknowledging that FIFA rules give it wide discretion to choose which problems to solve and which to ignore.

Why FIFA’s past hypocrisy may not matter

It is clear that last week FIFA exercised this assessment. FIFA President Gianni Infantino described being “shocked” last Thursday when he woke up and learned that an invasion was under way. He and the FIFA Council, a representative body comprising officials from all six football confederations, decided that this was a war that should be “very worrying” and a war that deserved to be condemned, while others were not. They chose to punish Russia and side with Ukraine in a dispute that Western democracies largely see as a war for no legitimate reason, but which Russian President Vladimir Putin justified as self-defense against NATO enlargement and baseless allegations of ” genocide ”in Ukraine.

RFU, legal experts say, may argue that these are political decisions caused by political pressure, which FIFA’s statutes do not allow.

So FIFA, in essence, should argue that it has broad powers to exercise political discretion and take influential action, an argument that has long been made by almost everyone except FIFA.

Some sports officials have broken the character to succeed this week. Announcing a ban on Russian and Belarusian athletes, World Athletics President Sebastian Coe acknowledged that sanctions “seem to be the only peaceful way to disrupt and deactivate Russia’s current intentions and restore peace.” He said “sport needs to be stepped up and joined in these efforts” and that, although he usually opposes the politicization of sport, “it’s different”.

FIFA officials have not yet made this argument public, but the Bank believes they could. The CAS will not rule on morality or hypocrisy, but only on whether FIFA has complied with applicable laws and its own rules. These rules seem to allow officials to make moral judgments. Logical arguments, as opposed to legalistic ones, could prevail.

FIFA can justify that its member associations – including those that have refused to play with Russia – have got their hands on it; and that it simply follows the recommendations of the IOC.

It can be argued that this is not a specific article or statute; it is a war that has already killed hundreds and is at odds with the ideals that FIFA claims to represent.