FC Zenit JSC and 3 others v Union des Associations Européennes de Football (UEFA)
CAS 2022/A/8865 - CAS 2022/A/8868 Court of Arbitration for Sport (Switzerland) L O’Leary, P; MJ Beloff & J Benz, Arbitrators November 25, 2022 Reported by Faith Wanjiku and Bonface Nyamweya Download the Decison Sports law- UEFA Champions League- qualification for UEFA Champions League- removal of a team from UEFA Champions League that qualified- where two teams were removed from UEFA Champions League because of the Russia-Ukraine war- where the decision to drop the two teams was influenced by the increasing number of UEFA national associations publicly stating their intention to not participate in matches against the FUR’s teams and serious concerns about UEFA’s ability to ensure the safety and security for all those who attended its matches notwithstanding the impact of travel bans to and from the Russian territory on the organisation of UEFA competition matches-what were the powers of the UEFA Executive Committee in dismissing a qualified club from UEFA Champions League - Champions League Regulations (2022/23 UEFA Champions League), article 86; UEFA Statutes (2021 edition), articles 62.1 and 65. Sports law- UEFA Champions League- qualification for UEFA Champions League- removal of a team from UEFA Champions League that qualified- where two teams were removed from UEFA Champions League because of the Russia-Ukraine war- where the decision to drop the two teams was influenced by the increasing number of UEFA national associations publicly stating their intention to not participate in matches against the FUR’s teams and serious concerns about UEFA’s ability to ensure the safety and security for all those who attended its matches notwithstanding the impact of travel bans to and from the Russian territory on the organisation of UEFA competition matches- what was the principle of political neutrality in sports organization decisions-whether a decision taken by a sports organisation that touches on a military conflict breached the principle of political neutrality- Champions League Regulations (2022/23 UEFA Champions League), article 86; UEFA Statutes (2021 edition), articles 62.1 and 65. Sports law- UEFA Champions League- qualification for UEFA Champions League- removal of a team from UEFA Champions League that qualified- where two teams were removed from UEFA Champions League because of the Russia-Ukraine war- where the decision to drop the two teams was influenced by the increasing number of UEFA national associations publicly stating their intention to not participate in matches against the FUR’s teams and serious concerns about UEFA’s ability to ensure the safety and security for all those who attended its matches notwithstanding the impact of travel bans to and from the Russian territory on the organisation of UEFA competition matches- whether the UEFA Executive Committee dismissing the two clubs from UEFA Champions League amounted to an administrative decision or a disciplinary decision - Champions League Regulations (2022/23 UEFA Champions League), article 86; UEFA Statutes (2021 edition), articles 62.1 and 65. Brief facts The appeal was against a decision taken by the Union of European Football Associations (UEFA) Executive Committee on May 2, 2022 to remove the FUR and Russian clubs from the access list to participate in UEFA club competitions and to adjust the competition coefficient points assigned to Football Union of Russia (FUR) for the 2022/23 football season (the appealed decision). Access to the UEFA Champions League, UEFA Europa League and UEFA Europa Conference League (collectively, the various club competitions) for UEFA’s member associations and their clubs was determined by a coefficient system that ranked UEFA’s member associations on an access list, which in turn determined the number of clubs that a member association could enter into the various club competitions and the seeding of those clubs. The present proceedings primarily concerned the exercise of UEFA’s discretion to make amendments to the organisation of impending competitions to give effect to the suspension decision, which itself was taken in circumstances that the Panel considered merit the descriptive adjectives “extraordinary” and “unforeseen”. The Panel in so describing them had in mind: the widespread condemnation of the military conflict by international organisations and governments; the reaction of the international sports community, including the International Olympic Committee (the IOC), to the conflict; the imposition of sanctions and travel bans on Russian people and businesses; the uncertainty of the duration and scope of the conflict; and the exceptional and widespread international public reaction against it. In addition, the Panel had been asked to bear in mind from a football perspective: the increasing number of UEFA national associations publicly stating their intention to not participate in matches against the FUR’s teams; serious concerns about UEFA’s ability to ensure the safety and security for all those who attended its matches; and the impact of travel bans to and from the Russian territory on the organisation of UEFA competition matches. All those circumstances provided the background to which the suspension decision, and subsequently the appealed decision, were taken and were relevant to the Panel’s analysis. Issues- What were the powers of the UEFA Executive Committee in dismissing a qualified club from UEFA Champions League?
- What was the principle of political neutrality in sports organization decisions?
- Whether a decision taken by a sports organisation that touched on a military conflict breached the principle of political neutrality.
- Whether the UEFA Executive Committee dismissing the two clubs from UEFA Champions League amounted to an administrative decision or a disciplinary decision.
- The decision of a sports association could be characterised as either an administrative decision or a disciplinary decision. Insofar as there was on the part of the appellants a contention that the appealed decision was a disciplinary sanction, the Panel found that in the present case, the appealed decision was not a disciplinary sanction. There was indeed no evidence or suggestion that the appellants breached any UEFA regulation or a provision of the UEFA Statutes or engaged in misconduct such as could attract a disciplinary process or a disciplinary sanction imposed to penalise such conduct. The decision was taken by the UEFA Executive Committee, which was UEFA’s executive decision-making body, and not by any UEFA judicial body as was normally the case for a disciplinary decision. The appealed decision was not a disciplinary sanction imposed on the basis of past conduct.
- The appellants’ submissions regarding the difference between a priori rules and a posteriori rules and in that context its reliance on CAS 2014/A/3625 and CAS 98/200 were irrelevant to the present case. The Panel recalled that CAS 98/200 concerned a challenge brought by two professional clubs to the validity of a rule regarding the participation of clubs with a common controlling ownership in the same UEFA club competition. The rule provided that only one club could participate in a UEFA club competition and that in cases where two or more clubs with common controlling ownership had qualified for a competition, the club with the highest coefficient would be permitted entry. The challenged rule was implemented to limit conflicts of interest and remove any adverse public perception regarding the authenticity of match results.
- CAS 2014/A/3625 involved a challenge to a regulatory measure which main purpose was to exclude from UEFA competitions a UEFA member association or club that had been directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level, without prejudice to any possible disciplinary measures. The Panel accepted that while the challenged measures in CAS 98/200 and CAS 2014/A/3625 had an exclusionary effect, they were implemented to prevent a situation arising that could affect public perception of the authenticity of match results or to respond to and inhibit particular behaviour (i.e. match-fixing). In short, they were precautionary and not penal. The Panel accepted the respondent’s explanation that the appealed decision was not adopted by way of punishment in response to something the clubs had done or not done but was implemented proactively to remove Russia from the access list to participate in UEFA club competitions in light of the suspension decision.
- The appealed decision was not a moral judgment adopted by UEFA in response to the military conflict in Ukraine and was clearly not a sanction imposed to enforce compliance with international law obligations, encourage the peaceful settlement of international disputes or to maintain security, as sanctions adopted by governments were typically imposed to achieve. There was simply no evidence before the Panel that the appealed decision was implemented as a sanction against the Russian Federation. The Panel accepted the respondent’s submission that the appealed decision implemented changes to its Competition Regulations, which the respondent considered necessary in light of the ongoing suspension of Russian clubs from participation in its competitions.
- The appealed decision could be properly characterised as an administrative decision taken by the UEFA Executive Committee to make the necessary adjustments to the Competition Regulations which applied to the Champions League, Europa League and Europa Conference League, respectively, in light of the suspension decision, which in turn, was a measure put in place to deal with the consequences of a military conflict for the football competitions that UEFA organised.
- The Panel accepted that the administrative decisions of a sports association were not immune to review and observed that under article 75 of the Swiss Civil Code (SCC) a decision could be challenged if there was a violation of the association’s statutes or mandatory legal rules. Nonetheless, the Panel recalled that in determining the scope of review for an administrative decision such as the one in the present case, under article 69 of the SCC, the board of an association was entitled and obliged to manage and represent the association, and that in accordance with the Swiss law of private associations, a sports association had a high degree of autonomy to regulate its own affairs and make decisions that were in line with its statutory objectives and in accordance with its statutes.
- When reviewing the decisions of a sports association similar to the one adopted in the present case, the Panel was not engaged in an exercise of evaluating the merits or the substantive value of the decision, still less of substituting its own view for that of the sports association. The Panel was mindful of the principle well-established in CAS jurisprudence, even taking account of the de novo review enjoyed under article R57, that a sports association was best placed to make decisions that further its statutory objectives, and that respect for the principle of freedom of association required a certain level of deference to be afforded to a sports association.
- CAS jurisprudence established that the principle of deference and respect for the autonomy of a sports association was not absolute, and that those principles could yield when there were exceptional circumstances such as arbitrariness, a misuse of an association’s discretionary power, discrimination, or breaches of any relevant mandatory legal principle. Nonetheless, the threshold for determining those exceptional circumstances was set high, and the arbitrariness, discrimination or breach had to be blatant and manifest, and offend a basic sense of justice.
- The Panel accepted the respondent’s argument that the Competition Regulations did not apply to the present dispute. Article 1 of the Competition Regulations clearly stated that the regulations governed the rights, responsibilities and duties of all parties participating and involved in the preparation and organisation of the 2022/23 UEFA Champions League including its qualifying phase and play-offs. The Panel accepted the appellants’ submission that they all qualified on sporting merit for the various club competitions after the suspension decision, but also noted that, at the time they qualified for admission on sporting merit, they had already been suspended from UEFA competitions and were never going to be admitted to the club competitions unless or until the Suspension Decision had been lifted, which at the time the Appealed decision was taken had not occurred.
- Although the clubs could have qualified on sporting merit for the UEFA club competitions for the 2022/2023 season and received a licence from FUR to participate in the various club competitions subsequent to the suspension decision, the suspension decision removed the clubs from participation in any of the respondent’s club competitions as from February 28, 2022 and accordingly removed their involvement in the preparation and organisation of the 2022/23 competitions, even though they could nominally have appeared as included. The Panel considered, therefore, that the Competition Regulations did not apply to the present dispute to determine the competent entity to take the Appealed decision.
- The UEFA Executive Committee was tasked with managing UEFA and its duties were outlined in article 24 of the UEFA Statutes. Article 65 of the UEFA Statutes provided that the Executive Committee could have the power to decide on all matters not covered in those Statutes, such decisions to be made in accordance with relevant FIFA regulations. If no such regulations existed, the Executive Committee should decide according to right and justice.
- The onus was on the appellants to establish a breach of a dominant position and that it did not submit any economic or expert evidence to support the existence of a market, UEFA’s dominant position on that market or any of the alleged breaches of article 7 of the Swiss Cartel Act. Furthermore, the Panel found that there was simply no evidence to support the appellants’ contention that the respondent adopted the appealed decision as a backup plan and with the aim of excluding the appellants from the various club competitions irrespective of the outcome in CAS 2022/A/8709.
- The suspension decision removed the right of participation in UEFA club competitions from Russian representative teams and clubs. Belarusian clubs had so far not been suspended from participation in UEFA competitions. Instead, on March 3, 2022, the UEFA Executive Committee decided that all Belarusian clubs and national teams competing in UEFA competitions would be required to play their home matches at neutral venues and that no spectators would attend matches that feature teams from Belarus as host. The Panel noted that Russia and Russian clubs had been removed from the access list but Ukraine and Belarus still remained on the access list in position 12 and position 29 respectively.
- The military conflict between Russia and Ukraine had elicited an unprecedented global reaction, including amongst the general public, and that the different treatment of the FUR and the Belarusian FA arose because Belarus’ involvement in the military conflict was different to that of Russia, Belarus had not faced the same degree of backlash regarding the military conflict that Russia had and because the UEFA Executive Committee considered that implementing such measures were possible for Belarusian teams and clubs. The Panel found that, in the present case, removing Russia from the access list was a consequence of the suspension decision and that since the Belarusian FA, its teams and clubs had not been suspended from participation in UEFA club competitions, there was no need to amend the access list to remove Belarus. Neither for that matter was there a need to remove Ukraine from the access list.
- There was no definition of political neutrality in the UEFA Statutes, other than the reference in article 1.1 to the requirement for UEFA to be neutral politically and religiously. The Panel recalled the description of political neutrality outlined in CAS 2019/A/6500 and 6580, para 105 that the principle of political neutrality, in the view of the Panel, required that no political interference whatsoever was exercised on the activities of a sporting organisation. Indeed, athletes had to be free to exercise their sport without any political interference.
- The UEFA Executive Committee took into consideration a number of factors when taking the appealed decision. Those factors included the suspension decision and the urgency to make amendments in view of the impending competitions, the refusal of some member associations to play against the FUR’s teams, security concerns, flight bans, and the widespread public reaction against the military conflict.
- The military conflict in Ukraine undoubtedly raised political issues but that did not lead automatically to the conclusion that any decision taken by a sports organisation that touched on a military conflict breached the principle of political neutrality. The military conflict in Ukraine was the catalyst for a series of extraordinary and unforeseen consequences, namely: the widespread condemnation of the military conflict by international organisations and governments; the reaction of the international sports community to the conflict; the imposition of sanctions and travel bans on Russian people and businesses; the uncertainty of the duration and scope of the conflict; and, the exceptional and widespread international public reaction against it. More specifically, from a football perspective: the refusal of certain national associations to play against Russian teams or clubs; the effect that refusals might have for the organisation of events such as UEFA’s competitions or the FIFA World Cup 2022; as well as related security concerns.
- Whilst the positions adopted by member associations, European governments and the general public were clearly considerations in the Executive Committee’s decision, the majority accepted the respondent’s submission that the Executive Committee did not arrive at the Appealed decision because of pressure from member associations or the views of European governments. The Panel considers that the UEFA Executive Committee acted as it did to implement the Suspension Decision, which in turn was taken in response to a set of extraordinary and unforeseen circumstances, and not because UEFA favoured a particular political position. The Panel accepted that the effect of the Suspension Decision and the appealed decision could lend itself to the perception that UEFA favoured a political position, but that was an unavoidable consequence of the decisions that it took having considered all of the circumstances.
- While the appealed decision could have been consonant with the views implicit in the IOC Resolution or the views of European governments or even the views of the general public, there was no evidence that it was taken only or substantially because of those views or that it was taken in support of those positions or again that it would not have been the same decision irrespective of those views. In the Panel’s opinion the Appealed decision was taken to further UEFA’s statutory objectives, specifically those of articles 2.1(b) and (d), which, the Panel found was within the UEFA Executive Committee’s margin of discretion in the situation with which the Executive Committee was faced.
- The appealed decision concerned only Russia because the Suspension Decision related only to FUR, its teams and clubs. The Appealed decision implemented the suspension decision and therefore applied only to FUR and Russian clubs. When compared to UEFA’s response to other military conflicts involving countries such as Israel, France, Azerbaijan, Turkey, Armenia, and based on the limited information that it has in relation to UEFA’s response in those situations, the Panel found no evidence of discrimination on the basis of nationality. The Panel considered that any difference in treatment between the appellants, and the member associations, teams or clubs involved in past military conflict situations was not because of nationality, but because the military conflict in Ukraine had elicited an unprecedented global reaction, including amongst the general public, unlike previous military conflicts.
- It was the consequences of that reaction to which UEFA considered it was required to act in order to fulfil its statutory objectives. While the Panel did not find it helpful to compare UEFA’s approach to previous conflicts with its response to the military conflict in Ukraine, it emphasised that that particular military conflict had resulted in extraordinary and unprecedented circumstances and necessitated the suspension decision. The suspension decision was not at issue in those proceedings and so the Panel made no finding regarding whether UEFA discriminated on the basis of nationality against the appellants when it took the Suspension Decision.
- The Panel accepted that the Suspension Decision, and by extension the appealed decision, would have an adverse impact on Russian football, although the extent of that impact was not demonstrated in those proceedings. The Panel was not presented with any evidence that would satisfy it to the appropriate standard that an infringement of the appellants’ rights to economic development and fulfilment, and to honour had occurred. The Panel, therefore, found that on the basis of the evidence available to it, no infringement of article 28 of the SCC had occurred.
- Assuming (quod non) that an infringement even arises, the majority agreed with the respondent that an incursion on the appellants’ personality rights in the circumstances of the present case was likely justified by UEFA’s overriding interest of protecting the integrity of its competitions and its legitimate security concerns, both of which would amount to an overriding private interest that could justify the infringement if one were found to have occurred, under article 28(2) of the SCC.
- While the appealed decision was not a disciplinary decision, the Panel was entitled to assess the proportionality of the measure within the scope of its review of the exercise of UEFA’s discretion, and arguments regarding proportionality were relevant. The majority found that at the time the Appealed decision was taken, it was a proportionate and necessary response to implement the Suspension Decision, taking into consideration the appellants’ interest, UEFA’s interest and the interests of other European football stakeholders.
- UEFA had already, on February 28, 2022, taken the suspension decision and, in light of that decision, was required to make amendments to the access list in order to progress the efficient organisation of its impending club competitions. The Panel noted that some of the appellants’ arguments regarding proportionality and the alternatives to taking the appealed decision (e.g. participation without identifying nationality, playing on neutral venues, or safety and security concerns) were, in fact, more relevant to a challenge against the Suspension Decision, which was not the subject of the appeal, and which the Panel had not been called upon in those proceedings to consider.
- The alternatives suggested by the appellants of resolving any issues that should arise if the appellants were to participate through disciplinary proceedings, or enabling certain UEFA officials to make a decision, were reactive responses, and that it was not disproportionate to adopt a more proactive response to minimise disruption to a sports competition.
- Although the Russian Ministry of the Interior had provided assurances to two of the clubs that it would ensure the security and safety of participants and matches that occur at their grounds, the Panel acknowledges UEFA’s submission that security risked and safety concerns could extend beyond an individual country’s borders. It observed also that many governments in Europe had likely issued travel advisory notices, warning against travel to Russia given the uncertain duration and scope of the existing military conflict, which would prevent the teams and supporters of other member associations, from travelling to Russia, even if matches were permitted to be played there.
- Regarding the Clubs’ suggestion that UEFA should adopt a similar protocol to that in place for COVID-19, the Panel observed that the global pandemic affected many countries including Russia. The Panel was not provided with evidence of UEFA’s COVID-19 protocol and how it might have applied to the clubs, nevertheless, it considered that a protocol designed to limit the spread of a virus would very likely not limit or remove altogether the security concerns for participants and spectators of a match involving one of the clubs.
- In the extraordinary and unprecedented circumstances with which UEFA was faced and to achieve its statutory objectives, the appealed decision was a reasonable and proportionate decision to take in order to make necessary amendments to impending competitions in light of the suspension decision. It was required to provide safe, secure and orderly international football events for European football’s stakeholders. The majority and, in some matters as outlined fully above the Panel, found that the decision did not breach the principle of political neutrality, nor mandatory provisions of Swiss law, was not disproportionate or discriminatory, and fell within the margin of discretion that UEFA had when making decisions that further its statutory objectives.
- It was unfortunate that UEFA was required to take the suspension decision, and similarly the appealed decision, for which the clubs and players had themselves no responsibility, but which had had, and would likely have, an adverse effect on them. The Panel recalled that the suspension decision was a temporary one, and that the Russian representative teams and clubs were suspended from taking part in UEFA competitions until further notice and very much hope, for the benefit of the entire European football community, that circumstances developed in a way that the suspension decision could properly be lifted and FUR and Russian clubs restored to the access list for UEFA club competitions.
Panel dismissed the appeal.
Relevance to the Kenyan jurisprudence The Constitution of Kenya in the fourth schedule part1 (17) on the distribution of functions between the national government and the county governments (articles 185 (2), 186 (1) and 187 (2)) notes that the national government has the role to promote sports and sports education. Article 71 of the FKF Constitution, 2017 on the Court of Arbitration for Sport notes that: 1. In accordance with the relevant provisions of the FIFA Statutes, any appeal against a final and binding decision passed by a FIFA body, by a CAF body, or the Leagues shall be heard by the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, unless another Arbitration Tribunal has jurisdiction in accordance with art. 68. 2. CAS shall not, however, hear appeals on violations of the Laws of the Game, suspensions of up to four matches or up to three months (with the exception of doping decisions). 3. FKF shall ensure its full compliance and that all those subject to its jurisdiction with any final decision passed by a FIFA body, by a CAF body, by the Arbitration Tribunal recognised by FKF or by the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. Chapter 9 of the Rules and Regulations Governing Kenyan Football (2019) talks of misconduct and sanctions while chapter 10 expounds on complaints, protests and appeals. Rule 3.5 notes that: It shall be the duty of the home team to ensure that adequate security and safety arrangements are made for the match crew and their property and that of the spectators. If a home club fails to make reasonable hosting and security arrangements the FKF National League and Competitions Committee can change the venue for their home matches until the club presents a detailed security plan and budget acceptable to the said committee The case of Kenya Rugby Union v Registrar of Sports & 11 others [2015] eKLR held that: Sports are not to be played out in court rooms or before Tribunals. For the benefit of those Kenyans who are Sportsmen and women, for those Kenyans who are ardent lovers of sport, for the sake of those youngsters whose talents require to be harnessed, the courts need to firmly tell the administrators of sports organizations that, the place of sports is in the fields and stadiums not in court rooms. This case is therefore key to the Kenyan jurisprudence on sports law, precisely security matters of international sports in relation to dispute resolution in the Court of Arbitration for Sport as it notes that the military conflict in Ukraine undoubtedly raises political issues but that does not lead automatically to the conclusion that any decision taken by a sports organisation that touches on a military conflict breaches the principle of political neutrality.