Sporting sanctions against Russia – the legal perspective

The suspension of individual athletes is not a novelty in the ATP and WTA tennis circuits, but very rare. Tennis players were first banned from competing on the grounds of their nationality when German and Japanese players were expelled after World War II. Before the decision of AELTC and LTA, only national teams have been suspended since the beginning of the invasion to Ukraine. An early and prominent sporting sanction announced has been FIFA’s decision to expel the Russian men’s football team from qualifying for this year’s World Cup in Qatar. There was not much public outcry here. It is worth considering the distinction between individual and team sports. While team sports such as football are usually funded by the state and used for soft power and state prestige – similar to the Russian national team at the 2018 FIFA World Cup or Olympic Winter Games 2014– the same does not necessarily apply to athletes competing in individual sports like tennis. A distinction must also be made in the legal area - when it comes to the question of whether the exclusion of an individual or a team is legal.

The recommendation by the IOC – to ban Russian and Belarusian athletes from all international competition in response to the breach of the Olympic Truce – has ended a tradition celebrated globally: the right for athletes from around the world to come together despite their nations’ political, religious, and ideological differences. On the same day, soccer governing bodies FIFA and UEFA had decided together that all Russian teams, whether national or club sides, be suspended from participation in FIFA and UEFA competitions until further notice after Russia's invasion of Ukraine. CAS denied a motion by Russia seeking an expedited ruling on 8 April 2022 (operative part notified on 18 March) to halt FIFA's ban on its involvement in qualifiers for the men's 2022 World Cup (CAS 2022/A/870). CAS is still set to hear a full appeal from the Football Union of Russia (FUR). A final ruling could come "within weeks." Whether such far-reaching measures against member association like FUR are legal is not yet clear but FIFA has valid legal basis to impose the suspension under their respective statutes.

CAS recognizes that sport governing bodies can sanction member associations in accordance with applicable rules and general legal principles (TAS 2011/A/2433, para 20). Accordingly to art. 16 (1) FIFA Statutes a temporarily suspension of a „member association that seriously violates its obligations“ is possible. However, FIFA only prevented the FUR’S national teams from participating in FIFA competitions. Therefore, this should not be a case of suspension an association pursuant to this provision. Further, it is not clear whether and how FUR had violated its obligations as it is legally distinct from the Russian government. Thus, FUR should continue to be entitled to the right under art. 13 FIFA Statutes ”to take part in the competitions organized by FIFA“. This is all the more true, as FIFA is committed to political neutrality (art. 4(2) FIFA Statutes). FIFA argued that FIFA derives the authority to sanction according to art. 34(1), 38(1) FIFA Statutes and art. 31 Regulations FIFA World Cup 2022. According to these provisions, FIFA ”shall deal with all matters relating to FIFA that do not fall within the sphere of responsibility of another body“ or ”a situation not covered by the FIFA regulations“. On the substantive basis, however, FIFA then resorted to generalities as ”wide autonomy and margin of discretion when deciding on matters related to the competitions which they organise” (CAS 2022/A/8708, para 57). Security risks and the responsibility for the smooth running of the matches, however, can be heard convincingly. In the hearing for a final award, FIFA may also relay on their humanitarian commitments (art. 3-4 FIFA Statutes). FIFA might argue that these commitments would have been compromised if Russia continues its participation in football and provides the legal basis for FIFA to act against FUR.

The decision of LTA and AELTC to ban individual tennis players could face legal actions in the future. As there exists no functioning players’ unions in tennis, it is likely that the Association of Tennis Professionals (ATP) and the Women’s Tennis Association (WTA) have the greatest opportunity to challenge the decision. Both organizations already expressed strong objections to the ban.

It is particular interesting to note that the ban is a unilateral decision by AELTC and LTA that could nevertheless violate different rules. Even though ATP has not the same jurisdiction over the Grand Slams, it can react to both. However, AELTC as a private member’s club has more leeway to take stands in comparison to LTA which runs ATP sanctioned events. Therefore, the prospect of defending the ban might be harder for LTA, given it cannot invoke of being a private members’ club like AELTC.

Transferred to an employment situation, this ban would be an explicit form of national origin discrimination and therefore would be regarded as illegal, but tennis players are no employees. However, discrimination based on nationality might violate the Grand Slam Rules which state that “the guideline for the acceptance of entries and for the resolution of all ties shall be the singles and doubles rankings systems“. AELTC might have breached its responsibility with the ban. According to the ATP handbook, LTA has breached regulation 8.01B, because player entries are based solely on ATP ranking and could thus be liable for a $ 250,000 fine and/or a change in its membership status. Other reactions up to a complete boycott of the event would also be possible, but hardly seems likely because then all players would be adversely affected.

Banning individual athletes is different from banning national teams, which have direct ties to governments. LTA and AELTC can also not rely on their commitments on human rights in the same way than FIFA. Therefore, banning individual players could be an act of banning independent contractors, who may not even be residing in Russia or Belarus, and who normally have no funding of their home country.

It will be interesting to see whether the decisions of FIFA and of LTA and AELTC (should they have to be decided by CAS) will stand up to the principle of proportionality. CAS jurisprudence require that “the severity of the sanction must relate to the gravity of the wrongdoing displayed” (CAS 2020/A/6929, para 82). A more proportionate action would be if Russian individual athletes compete on a neutral status. The two-year-ban for state sponsored doping allowed the Russian teams exactly that even though it is hard to draw parallels between doping and a war.

The controversial Wimbledon ban also raises questions about whether such restrictive measures will apply equally to different conflicts around the world. The discussion and legal disputes will therefore not stop as long as the associations do not look reality in the eye. Sports and politics should not be intertwined but they have to deal with the fact that politics is crossing into sports. It is therefore up to the associations to create legal certainty for these cases in the regulations (e. g. embedding human rights into their rules with concrete consequences after the United Nations making an announcement of human rights violation) in order to counteract divergent ad hoc decisions we see right now. Until then, the sports world will face several legal actions and lawsuits.