Russian Football Union (RFU) v. Czech Football Association, Fédération Internationale de Football Association (FIFA), Football Association of Montenegro, Malta Football Association (MFA), Polish Football Association, Swedish Football Association, Union of European Football Associations (UEFA)

II. INTRODUCTION

10. This is an appeal against a decision taken by the Bureau of the FIFA Council (the “FIFA Bureau”) dated 28 February 2022 (the “Appealed Decision”) which suspended the Appellant’s national teams from participation in FIFA competitions. The Appealed Decision states as follows:

“All teams of the FUR or otherwise affiliated to the FUR are suspended from participating in FIFA competitions until further notice and until the situation improves sufficiently to allow teams of the FUR or otherwise affiliate to the FUR to be readmitted”.

11. These proceedings primarily concern the exercise of FIFA’s discretion to remove the Appellant’s right, provided in the FIFA Statutes, to participate in FIFA-organized competitions, in circumstances which the Panel considers to be extraordinary and unforeseen. The catalyst for these circumstances was the commencement of a military conflict between

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Ukraine and Russia on 24 February 2022, which is still ongoing at the time of the Panel’s decision. When reaching its decision, the Panel has not taken a position on the conflict or how it is characterised or otherwise referred to. In its capacity as a Panel, it does not need to do so. The Panel needs to do no more than acknowledge that there are different views as to the nature of the conflict in Ukraine, as illustrated by the different terms in which the Parties themselves have referred to the conflict. The Appellant describes it as “military operations”. FIFA and UEFA refer instead to an “act of war”, or a “Russian military invasion”. Be that as it may, the Panel repeats that it considers it unnecessary in the exercise of its adjudicative role to enter the debate or to offer a view on the nature of the conflict. It is concerned only with the correctness or otherwise of the exercise of a sports association’s discretion in the circumstances arising from the conflict by examining those circumstances at the time the decision was taken.

12. In the Panel’s view, those circumstances merit the descriptive adjectives “extraordinary” and “unforeseen”. The Panel in so describing them has in mind the rapidly evolving series of events that occurred during the period after 24 February 2022 and as existed at the time when the Appealed Decision was taken on 28 February 2022, namely: the widespread condemnation of the military conflict by international organisations and governments; the reaction of the international sports community, including 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 has been asked to consider, from a football perspective: the refusal of the Third, Fourth and Fifth Respondents to play against Russia in the impending Playoffs for the FIFA World Cup Qatar 2022™ (the “World Cup 2022”); the prospect of other FIFA members adopting a similar stance; the effect these refusals might have for the organization of the World Cup 2022; and security concerns for FIFA-organized competitions and the players, teams and sports administrators involved. All these circumstances provided the context in which the Appealed Decision was taken and are relevant to the Panel’s analysis.

13. The Panel also emphasises that it has not taken into consideration any events occurring since 28 February 2022 which, retrospectively and with the benefit of hindsight, may, arguably, have led to a different decision being taken had they been known at the time of the Appealed Decision itself. The Panel has focused on the Parties’ evidence and legal submissions as to the circumstances known or foreseeable on 28 February 2022, which underlay the Appealed Decision.

VI. JURISDICTION

81. Article R47 of the Code provides that:

An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific

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arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body.

82. Pursuant to Article 57(1) of the FIFA Statutes:

Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS within 21 days of receipt of the decision in question.

83. The Appellant relies on Article 57(1) of the FIFA Statutes, as conferring jurisdiction on the CAS. The Respondents agreed at the outset of the hearing that there were no objections to the jurisdiction of the CAS when requested to offer their views by the Panel and the jurisdiction is further confirmed by the Parties’ signatures on the Order of Procedure.

84. Accordingly, on the basis of the above, the Panel is satisfied that it has jurisdiction to adjudicate the present dispute.

VII. ADMISSIBILITY

85. Article R49 of the Code provides as follows:

In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against.

86. According to Article 57 of the FIFA Statutes:

1. Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS within 21 days of receipt of the decision in question.

2. Recourse may only be made to CAS after all other internal channels have been exhausted.

87. The Panel observes that the FIFA Bureau rendered the Appealed Decision on 28 February 2022 and, following the Appellant’s request, notified the grounds of the Appealed Decision by email to the Appellant on 3 March 2022.

88. The Appellant submits that the FIFA Statutes and various regulations do not provide an internal channel to challenge the Appealed Decision and that it filed the appeal in time. The Respondents do not contest the admissibility of the appeal.

89. The Panel notes that the Appellant filed its Statement of Appeal on 7 March 2022, well within the deadline of 21 days prescribed in the FIFA Statutes and the Code and that there were no other channels for appeal internal to FIFA. The Statement of Appeal also complies with the requirements of Article R48 of the Code.

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90. Accordingly, on the basis of the above, the Panel is satisfied that the Appeal was filed in time and is admissible.

VIII. APPLICABLE LAW

91. Pursuant to Article R58 of the Code, the Panel is required to decide the dispute:

[According] to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

92. Furthermore, Article 56(2) of the FIFA Statutes provides that:

The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law.

93. The Appellant submits that the Panel should primarily apply the “various UEFA regulations and subsidiarily, when relevant, Swiss law”. The First and Second Respondents respectively submit that the FIFA Statutes and associated regulations are applicable, with Swiss law applying subsidiarily.

94. The Panel notes that the Appealed Decision was rendered by the FIFA Bureau and that at the time the appeal was filed, the FIFA Statutes (May 2021 edition) was in effect. Furthermore, since the merits of the dispute touch on matters pertaining to the World Cup 2022, the World Cup Regulations are also relevant.

95. Accordingly, the Panel considers that the FIFA Statutes (May 2021 edition), the World Cup Regulations and any other FIFA regulations constitute the applicable law to the matter at hand. Swiss law applies subsidiarily.

IX. MERITS

96. In light of the Parties’ respective submissions, the Panel considers that there are three main issues for determination:

a. What is the nature of the Appealed Decision insofar as it affects the scope of the Panel’s review?

b. Did the FIFA Bureau have the competence or power to take the Appealed Decision?

c. If so, was the Appealed Decision an improper use of power?

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A. What is the nature of the Appealed Decision insofar as it affects the scope of the

Panel’s review?

a) The Nature of the Appealed Decision

97. The Appellant submitted that the decision was a “purely disciplinary decision” that had deprived it of the right to enter its national teams and clubs in competitions organised by FIFA and thereby profit from all “income, prestige and competitive opportunities” that participation in such competitions provides. In its view the decision imposed a sanction that was penal in nature and should be variously but properly characterised as a decision of a disciplinary nature, a disguised disciplinary sanction or, relying on the reasoning in CAS 2008/A/1583 & 1584, a decision that had “an inherent disciplinary aspect”.

98. The First Respondent rejected the Appellant’s contention that the Appealed Decision was a disciplinary decision and submitted that it was a decision to impose measures necessary for the “smooth-running and integrity” of FIFA’s competitions. The First Respondent emphasised that the Appellant had not been sanctioned nor had the actions of the Russian State been attributed to the Appellant. Accordingly, any suggestion that the Appealed Decision was disciplinary in nature, was wrong.

99. The Second Respondent also rejected the Appellant’s submission that the Appealed Decision was a disciplinary decision. It submitted that the concept of a disguised disciplinary sanction stemmed from CAS 2011/O/2422 or the so-called “Osaka Decision” where a measure taken by the IOC to deny an athlete’s eligibility to participate in the Olympic Games for previous infringement of anti-doping rules was classified as a sanction. However, the measure in the Osaka Decision was imposed because of an athlete’s past behaviour, whereas by material contrast the Appealed Decision did not seek to punish the Appellant for its past behaviour, but was taken to address an objective situation being the consequences that had arisen from a military conflict. The Second Respondent submitted that the reasoning of the CAS Panel in CAS 2008/A/1583 & 1584 where the specific rule in question excluded a club from participation in the Champions League was also irrelevant. In that particular case, the rule was held to be disciplinary in nature because its purpose was to sanction the relevant club for a particular past conduct, which was not the purpose of the Appealed Decision.

100. The Panel recalls that a decision taken by a sports association can be characterised as either an administrative decision or a disciplinary decision (see CAS 2007/A/1381, para 55; and CAS 2008/A/1583 & 1584, para 35). In the present case, the Panel finds that the Appealed Decision is clearly not a disciplinary decision, a disguised sanction or a decision that has an inherent disciplinary aspect. There is no evidence or suggestion that the Appellant breached any FIFA regulation or a provision of the FIFA Statutes or engaged in misconduct such as could attract a disciplinary process or a disciplinary sanction imposed to penalise such conduct. The Panel accepts the uncontradicted evidence of the First Respondent that the suspension was not imposed to sanction past conduct. The Panel also notes that the decision was taken by the FIFA Bureau that exercises powers on behalf of the FIFA Council, which in turn is one of the executive decision-making bodies in the FIFA governance structure, and not taken

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by the FIFA Disciplinary Committee or any other FIFA judicial body as is normally the case for a disciplinary decision. For all the foregoing reasons, the Panel finds that the Appealed Decision is not a disciplinary measure imposed on the basis of past conduct.

101. The Panel recognizes that suspending a member association’s right of participation in FIFA competitions, will have economic effects for a member association, and its players, teams and clubs that are all denied the opportunity to participate and the commercial opportunities and prestige that participation in FIFA competitions provides. The Panel was not presented with any specific evidence of the extent of the economic impact that the Appealed Decision has had or will have in the future, but it accepts that there will necessarily be an adverse impact on the Appellant, its players, teams, clubs and the entirety of Russian football, albeit the Appellant bears no responsibility for the situation that has led to its suspension. But whatever its effect, its intention was not penal. In that context, the Panel agrees with the submissions of the Second Respondent that the reasoning in CAS 2008/A/1583 & 1584 does not apply to the present case; there is no disciplinary aspect inherent to the Appealed Decision.

102. The Panel finds that the Appealed Decision is also not a disguised sanction. A disguised sanction is a measure that is not described as a sanction but is, nonetheless, intended to punish a certain behaviour of the person to whom the measure is addressed, as was the measure under consideration in CAS 2011/O/2422. As the Panel has found above, the Appealed Decision is not designed as a punishment for the Appellant’s previous conduct.

103. The Panel determines that, in the circumstances of the present case, the Appealed Decision may be properly characterised as an administrative decision taken by the FIFA Bureau to impose a measure to deal with the consequences of a military conflict for football competitions that it organizes. On that basis, the Panel finds that the Appellant’s claims that it was denied fundamental procedural rights that apply to a disciplinary process (such as the right to be heard) or that the First Respondent allegedly breached other legal substantive principles that apply to disciplinary decisions (such as non-discrimination) or disciplinary sanctions (such as proportionality) are misdirected and have no application.

b) Scope of the Panel’s Review

104. The Panel finds that the Appellant’s allegations of procedural failings, would in any event, have been cured by the present proceedings. The Panel observes that its duty pursuant to Article R57 of the Code is to decide the case de novo, which means that any denial of due process at the lower-level proceedings (if any) is cured by the CAS proceedings, a principle that is well-established in CAS jurisprudence (see CAS 2016/A/4648, para 74; CAS 2012/A/2913, para 87; CAS 2009/A/1880-1881 paras 142-146; CAS 98/208, para 10; TAS

105. On the basis that the Appellant considered the Appealed Decision to be disciplinary in nature, it submitted that the suspension was disproportionate (see CAS 2017/A/5031, para 72). Given that as the Panel has found above, the Appealed Decision was not a disciplinary decision, nor

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imposed a disciplinary sanction, the CAS approach to review of a sports association’s disciplinary decision is not engaged or in issue in this appeal.

106. The First Respondent submitted that a private sports association, such as FIFA, has a wide autonomy and margin of discretion when deciding on matters related to the competitions that it organises (CAS 2020/A/7572, para 106). It also contended that established CAS jurisprudence required a Panel to defer to the autonomy of a sports federation and the decisions of their main bodies (see CAS 2020/A/7090, paras 148 – 151). The First Respondent acknowledged that the principle of deference and respect for the autonomy of an association is not absolute and the principle may yield when there are “exceptional circumstances” such as arbitrariness, a misuse of an association’s discretionary power, discrimination or breaches of any relevant mandatory legal principle (see CAS 2020/A/7090, para 150).

107. The Second Respondent also referred to a sports association’s autonomy to make decisions and submitted that a level of deference should be extended to an association when assessing the proportionality of a measure (see CAS 2019/A/6665, para 157). It submitted that although such principles had primarily been considered by CAS in cases concerning disciplinary sanctions, it nonetheless, invited the Panel to apply the same principles to measures taken by a sports association to address objectively unforeseen circumstances as occurred in the present case.

108. The Panel recalls 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 “is entitled and obliged to manage and represent the association”, and that in accordance with the Swiss law of private associations, a sports association has a high degree of autonomy to regulate its own affairs and make decisions that are in line with its statutory objectives and in accordance with its statutes (see CAS 2018/O/5830, para 118; CAS 2017/O/5264, 5265 & 5266, para 193). Nonetheless, the Panel emphasises that the administrative decisions of a sports association are not immune to review and observes that under Article 75 of the SCC a decision can be challenged if there is a violation of the association’s statutes or mandatory legal rules.

109. The Panel also notes that when reviewing the decisions of a sports association similar to one adopted in the present case, it is not engaged in an exercise of evaluating the merits or the substantive value of the decision, nor of substituting its own view for that of the sports association. The Panel is mindful of the principle well-established in CAS jurisprudence, even taking account of the de novo review enjoyed under Article R57 of the Code, that a sports association is best placed to make decisions that further its statutory objectives, and that respect for the principle of freedom of association requires a certain level of deference to be afforded to a sports association.

110. CAS jurisprudence establishes that the principle of deference and respect for the autonomy of a sports association is not absolute, and that these principles “may yield when there are exceptional circumstances” such as arbitrariness, a misuse of an association’s discretionary power, discrimination or breaches of any relevant mandatory legal principle (see CAS 2020/A/7090, para 150). The threshold for determining those exceptional circumstances is set high, and “[the]

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arbitrariness, discrimination or breach must be blatant and manifest, and offend a basic sense of justice” (CAS 2020/A/7090, para 150). This deference to the decisions of sports decisions is not in conflict with the principle of de novo review; both can and do coexist under CAS jurisprudence. Even though CAS panels may review sporting decisions made by sporting bodies with some deference, that review is de novo and anew and CAS panels have and will consider evidence of violation of the relevant rules, statutes, and law de novo in determining whether a decision should stand.

111. The Panel therefore concludes that in the present case, in which it is reviewing the exercise of a sports association’s discretion, it is concerned not with the merits or substantive value of the decision made but with whether the decision and the measure it imposed violates the association’s statutes or mandatory legal rules or amounts to an improper use of the association’s discretionary power. In weighing up whether the decision amounts to an improper use of the association’s discretion, the Panel considers that the reasonableness and proportionality of the sports association’s actions are also factors for consideration. It addresses the application of such approach to the present appeal in paragraphs 129 to 173 of this award.

B. Did the FIFA Bureau have the competence to take the Appealed Decision?

112. Having established that the Appealed Decision was an administrative decision and the nature of the Panel’s scope of review, the Panel now turns first to the issue of competence and whether the First Respondent had the power to take the decision.

113. The Appellant submitted that there was no legal basis for the Appealed Decision because: (i) no situation of force majeure arose; and (ii) there was no superior decision or order that justified taking the decision e.g. an IOC recommendation.

114. The Respondents submitted that by application of Article 34(12) and Article 38(1) of the FIFA Statutes, and Article 31 of the World Cup Regulations, and in light of FIFA’s statutory objectives outlined in Article 2(a), (b) and (d), the FIFA Bureau was competent to take the decision. They contended that there was no need for a superior decision or order from an entity such as the IOC.

115. The Panel recalls that a private sports association established in Switzerland, such as FIFA, must act within the powers conferred on it by its statutes, and in line with its statutory objectives and mandatory legal rules under Swiss law. In that regard, the Panel notes FIFA’s objectives in Article 2 of the FIFA Statues and, in particular, Article 2(a), (b) and (d) which provide as follows:

“The objectives of FIFA are:

(a) to improve the game of football constantly and promote it globally in the light of its unifying, educational, cultural and humanitarian values, particularly through youth and development programmes;

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(b) to organise its own international competitions;

[…]

(d) to control every type of association football by taking appropriate steps to prevent infringements of the Statutes, regulations or decisions of FIFA or of the Laws of the Game.

[…]”.

116. Although the First Respondent referred the Panel to its objectives in Articles 2(a) and (d), the Panel finds that of primary relevance in the present case is Article 2(b), namely, FIFA’s objective to organise its own international competitions.

117. The Panel recalls that insofar as FIFA’s administrative decision-making is concerned, one of the principle decision-making bodies within the FIFA governance structure is the FIFA Council. It is empowered under Article 34(12) of the FIFA Statutes to:

“[…] deal with all matters relating to FIFA that do not fall within the sphere of responsibility of another body, in accordance with these Statutes”.

118. When the FIFA Council is between meetings and in cases of urgency, the FIFA Bureau is empowered under Article 38(1) of the FIFA Statutes to take decisions:

“The Bureau of the Council shall deal with all matters within the competence of the Council requiring immediate decision between two meetings of the Council. The Bureau of the Council shall consist of a maximum of seven members. The FIFA President and the six confederation presidents are ex officio members of the Bureau of the Council”.

119. The Panel observes that the present case concerns, in particular, FIFA’s flagship competition, the World Cup 2022. The World Cup Regulations came into force on 15 March 2019 and Article 2, establishes an organising committee that is responsible for supervising the organisation of the World Cup 2022 Preliminary Competition and taking decisions in respect of that competition’s organisation. Pursuant to Article 31:

“Matters not provided for in these Regulations or any cases of force majeure shall be decided by FIFA”.

120. The Panel notes that Article 31 of the World Cup Regulations provides for two situations in which FIFA is competent to take a decision, namely: matters not expressly provided for in those regulations or force majeure. Force majeure is not defined in the FIFA Statutes. The concept of force majeure is also not defined in statute under Swiss law. However, according to the Swiss Federal Tribunal, force majeure is a valid concept being the presence of an unforeseeable and extraordinary event that occurs with irresistible force beyond the control of the person concerned (CAS 2021/A/7673 and CAS 2021/A/7699, para 85 and authorities cited; CAS 2015/A/3909, para 86 and authorities cited, including SFT 2C_579/2011). The concept is most frequently invoked in the context of a contract, in which one party argues that it is unable to perform a contractual obligation because of a force majeure event there being described in

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CAS jurisprudence as “an objective impediment beyond the control of the obliged party that is unforeseeable, that cannot be resisted and that renders the performance of the obligation impossible” (CAS 2018/A/5537, paras 69 - 70). The Panel notes that military conflict is considered a classic force majeure event, and has been accepted as such by previous CAS Panels (see TAS 2020/A/7065, para 111; and

121. A not insubstantial part of the Appellant’s case that was put to the Panel at the hearing focussed on the concept of force majeure. In the Appellant’s view, a force majeure situation did not arise and so consequently FIFA had no legal basis on which to take the Appealed Decision. The Appellant argued in its Appeal Brief that a force majeure event did not arise because for the concept to apply, the party invoking it, in this case FIFA, would be prevented from doing something, and, in its view, matches involving the Appellant could be played on neutral grounds. In oral submissions, the Appellant’s counsel elaborated further and submitted that: there was no contract between the Appellant and the Respondent to which the doctrine applied; the military action was not an unforeseeable or extraordinary event because tension had been building up between Russia and Ukraine for a long time, and it was possible for FIFA to hold football matches involving the Appellant’s national teams because several countries had indicated that they would host the matches. There were also no real security problems associated with holding matches involving the Appellant’s teams on neutral grounds. The Appellant’s counsel submitted that whereas the military conflict was beyond FIFA’s control, sanctioning the national associations who refused to play against the Appellant’s teams was very much within FIFA’s control. The Appellant’s counsel contended there were no difficulties with the Appellant’s teams travelling to matches; for example, there were no restrictions regarding Russians travelling to Qatar. In the Appellant’s view, FIFA’s reliance on force majeure was misplaced and offered no legal basis for the Appealed Decision.

122. The First Respondent submitted in oral argument that the entire situation was not covered expressly in its Statutes or regulations, that the impossibility of holding matches had to be evaluated, that national associations were refusing to play the Appellant’s team, travel restrictions existed, and despite the Appellant’s assertions otherwise, the military conflict was not foreseeable, and more specifically, neither were the consequences that followed from it. The First Respondent submitted that the competence to take the decision existed irrespective of the force majeure argument since Article 31 of the World Cup Regulations directed that FIFA was competent to take the decision in relation to matters not provided for in the World Cup Regulations. While the Second Respondent’s counsel acknowledged the existence of the contractual doctrine of force majeure, he submitted that the present case had nothing to do with that doctrine, but rather with the definition of force majeure in the context that it appeared in the FIFA Statutes, which was in relation to FIFA’s residual power to make decisions within the scope of its objectives for which its Statutes did not expressly provide. These arguments from the Respondents side were not, as appears identical, but did lead to the same conclusion i.e. that there was a legal basis for the Appealed Decision.

123. A majority of the Panel endorses that conclusion. The majority finds that neither the FIFA Statutes nor the World Cup Regulations provided expressly for the situation in which the First Respondent considered that it needed to respond urgently in light of the impending Playoffs

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for the World Cup 2022. Therefore, the competence is provided by the first of the situations expressed in Article 31. The majority also accepts that the consequences of the military action were a force majeure event. Therefore, the competence is provided for by the second of the situations expressed in Article 31.

124. The majority finds that the military action was the catalyst for a series of extraordinary and unforeseen consequences that in themselves created a force majeure event in the context of the justification for the exercise of a sports association’s discretion in circumstances for which the sports association’s Statutes, in this case FIFA’s, did not specifically provide. The majority finds, that the force majeure event was in the present case not so much the military conflict per se, as the extraordinary and unprecedented consequences that followed, 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 the Third, Fourth and Fifth Respondents to play against Russia in the impending Playoffs for the World Cup 2022; the prospect of other FIFA members adopting a similar stance (which, in the event proved to be so); the effect these refusals might have for the organization of the World Cup 2022; and the related security concerns. The majority considers that the Appellant’s arguments failed to take sufficient account of these combined matters for collectively the evidence, even if individually of different weight, was compelling. They could point to no event which provided a precedent which should have prompted a decision from FIFA which preserved the Appellant’s right to participate in FIFA’s competitions.

125. Since these extraordinary and unforeseen circumstances fell between two meetings of the FIFA Council for which an immediate decision by way of response was required, by virtue of Article 38(1) of the FIFA Statutes, the majority finds that the FIFA Bureau was the appropriate FIFA body to make the decision. Accordingly, the majority finds that the FIFA Bureau was competent to make the Appealed Decision as something that was not expressly provided for within the World Cup Regulations or its Statutes and was a force majeure event.

126. In view of the foregoing, the Panel finds that the First Respondent did not require an order from the IOC or another international organisation such as the United Nations to provide it with the competence to act because the competence already existed within its own Statutes and regulations.

127. The Appellant also referred to the fundamental principles of Olympism, specifically paragraphs 4 and 5 which provide that:

“4. The practise of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.

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5. Recognising that sport occurs within the framework of society, sport organisations within the Olympic movement shall apply political neutrality [...]”

128. Since the Appellant did not provide sufficient explanation in its Appeal Brief or at the hearing as to the relevance of its reference to these, the Panel does not find it necessary to consider the relevance of the fundamental principles of Olympism further, other than to say that it is not therefore to be taken as endorsing any suggestion of discrimination in the Appealed Decision. Suffice it to say, that the Panel observes that these principles are not contained in the FIFA Statutes and both Respondents acknowledged, and the Panel accepts, that while the Appealed Decision was in line with the IOC Recommendation and also with decisions taken by other sports organisations, it was not taken on the basis of either the IOC Recommendation or the stance adopted by other international sports organizations.

C. Was the Appealed Decision an improper use of power?

129. Having found that the Appealed Decision was within the FIFA Bureau’s competence to take, the issue for the majority to determine is whether it violated the FIFA Statutes, mandatory rules of Swiss law or otherwise amounted to an improper use of a sports association’s power, bearing in mind also the sports association’s statutory objectives and the margin of discretion afforded to a sports association’s decision-making.

130. The Appellant submitted that the Appealed Decision:

a. violated the FIFA Statutes, specifically Articles 16, Article 13, Articles 15 and 19, Article 4, and Article 14(1)(b);

b. was disproportionate;

c. breached the principle of equal treatment;

d. violated the Appellant’s personality rights recognised in Article 28 of the SCC; and

e. violated Swiss competition law.

131. The Respondents rejected the allegations. The First Respondent, in particular, stated that the Appealed Decision was “warranted and necessary” in view of the unprecedented widespread reaction of the international community, including the imposition of numerous financial and logistical sanctions against Russia, which prevented it from running its competitions smoothly with the participation of the Appellant’s national teams. The First Respondent also emphasised the wide autonomy and margin of discretion that it had when deciding on matters related to the competitions which it organised, “especially under existing circumstances”.

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a) Alleged Violation of the FIFA Statutes

132. Article 16 of the FIFA Statutes empowers the Congress, and the FIFA Council in certain circumstances, to suspend a football association’s membership if that member “seriously violates its obligations”. The Panel finds that there is no evidence that the Appellant seriously breached its obligations, but also, no evidence that FIFA relied on this provision to suspend the Appellant. On the contrary, the Panel finds that the Appellant is still a FIFA member with all the rights and that obligations that that entails, excepting, of course, the right to participate in FIFA competitions (discussed further in the following paragraphs) which has been temporarily suspended. The Panel finds no breach of Article 16 has occurred.

133. Article 13 of the FIFA Statutes outlines the rights which a member association has, and which include in Article 13(e), “the right to take part in competitions organised by FIFA”. The Appellant states that the Appealed Decision violates this right and that the FIFA Statutes do not permit FIFA to limit this right or to otherwise suspend the Appellant from participation. The Panel accepts that FIFA has a legitimate interest in ensuring and maintaining that its competitions run smoothly (see also Order on First Request, para 78). The majority is of the view that FIFA’s interest, however, must be balanced against other interests as well, which in the circumstances of this case in particular is the Appellant’s right to participate in FIFA competitions provided in Article 13(e) of the FIFA Statutes.

134. The Panel accepts that the Appealed Decision temporarily denies the Appellant the right to participate in FIFA competitions. Neither Article 13 nor any other provision of the FIFA Statutes expressly state the circumstances in which a member association may be denied the right to participate, although the Panel accepts that this would be implicit in the exercise of the power under Article 16, which in the present case has not been invoked. The Panel observes that the rights contained in Article 13 are not stated to be absolute and the Appellant did not make any submissions that they were. The Panel finds that it would be practically difficult or even impossible for a member’s right to participate in competitions to be an absolute right, since there are likely other circumstances when the right of participation must give way to other rights or interests, such as another member’s right to participate or the wider interests of the football community or a force majeure event, similar in impact to the force majeure event that the majority finds occurred in the present case.

135. The Panel accepts that denying a member association the right to participate in FIFA’s competition when that member has not violated FIFA rules or regulations and for which its membership has not been suspended under Article 16, denies that member and its stakeholders the benefits that participation provides, e.g. financial incentives, commercial opportunities and prestige, amongst others, and is a decision that should not be taken lightly, and even then, only in the rarest of circumstances. Nevertheless, in the case of these unique and unprecedented circumstances, the majority finds that the Appellant’s right of participation was surpassed by FIFA’s interest of ensuring that its flagship competition, from which considerable income is generated to support the wider football community around the globe, and indeed the rest of its competitions, ran smoothly and with minimum disruption in light of the prevailing circumstances.

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136. The majority finds that in the circumstances that existed, and still prevail at the time of writing this decision, maintaining the Appellant’s right to participate in FIFA competitions would have made it extremely difficult, if not impossible, for FIFA to stage the kind of World Cup 2022 competition that it envisaged or indeed any other FIFA competition. The majority notes that while the bulk of the submissions in the present case focussed on the impending World Cup 2022, the considerations highlighted here must apply also to other FIFA competitions e.g. the FIFA Women’s World Cup 2023.

137. The Panel does not need to consider the degree of likelihood with which a World Cup competition might have been achievable were the Appellant’s participation retained. In the majority’s view, at the time of taking the decision and with a degree of foreseeability based on all the information available to the FIFA Bureau at the time the decision was taken, it is sufficient to find that staging the kind of competition which FIFA envisaged, and to which the rest of the world is accustomed, would have been all but impossible to achieve when considering the travel bans and sanctions imposed on Russia and Russian people, the heightened security concerns that the Appellant’s national team’s participation in football presented, the refusal of three national associations to play against the Appellant’s national team in the impending Playoffs, and the possibility that other member associations might adopt a similar position. Had it been possible to stage it at all in some severely truncated fashion, it would have been a World Cup in name only. Accordingly, the majority finds that no breach of Article 13 occurred.

138. The Appellant submitted that Article 15 of the FIFA Statutes obliges FIFA’s member associations to include in their statutes, provisions relating to certain matters, including the requirement “to be neutral in matters of politics and religion” (Article 15 (a)). Furthermore, pursuant to Article 19(1), “[each] member association shall manage its affairs independently and without undue influence from third parties”. In relying on these Articles, the Appellant submitted that the Third, Fourth and Fifth Respondents, breached the principle of political neutrality by refusing to play against the Appellant’s national team. The Appellant submitted that this was evident from the public statements made by the national associations when communicating their refusal to play against Russia, and by supporting their behaviour, it alleged that FIFA discriminated against the Appellant on a “clearly political basis” thereby breaching Article 4.1 of the FIFA Statutes.

139. The Appellant alleged that FIFA breached the principle of political neutrality when taking the Appealed Decision because it was under pressure from the member associations that had publicly announced their refusal to play the Appellant’s national teams. In oral submissions, the Appellant elaborated further on that argument, stating that it was clear that the Appealed Decision was a consequence of a reaction to: the views of member associations; the majority of governments of European countries; and the general public’s view against the actions taken by the Russia in Ukraine. Further, it submitted that FIFA was also influenced by the IOC’s political stance and the IOC Resolution because the Appealed Decision and the IOC Resolution were passed on the same day. Finally, it stated that there was no proof that the Appellant or its players supported the Russian State’s actions.

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140. The First Respondent denied that the Appealed Decision breached “any form of political neutrality, insofar as it is simply not a political decision” but was “objectively necessary and justified to organize the World Cup 2022 qualifiers and other FIFA competitions given the circumstances which FIFA was facing”. It further stated that “although FIFA [disapproves of] the Russian Invasion of Ukraine, this was not the legal reason for taking the Appealed Decision”. The First Respondent contended that the alleged breach of political neutrality by the national associations was not proven, and that in any event a breach of political neutrality by the national associations (if proven) would not fall under the scope of these proceedings nor constitute a reason for the annulment of the Appealed Decision. The Second Respondent asserted that the Appellant was suspended from participation because of an objective situation created by the military conflict and not because FIFA (or UEFA) politically agrees with Ukraine.

141. The Panel observes that Articles 15 and 19 are obligations directed towards member associations and not towards FIFA. Articles 15 and 19 require member associations to remain neutral in political matters and ensure that their decision-making is independent and not influenced by external parties, such as e.g. a national government. The Panel agrees with the First Respondent that any allegation of a breach of Articles 15 and 19 by a member association falls outside the scope of these proceedings and, accordingly, the Panel considers that it is not required to make findings as to whether the Third, Fourth and Fifth Respondents have in fact breached Articles 15 and 19.

142. On the issue of whether FIFA has discriminated on a political basis against the Appellant contrary to Article 4.1 or breached the principle of political neutrality outlined in Article 4.2, the Panel notes that Article 4 of the FIFA Statutes provides as follows:

“1. Discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.

2. FIFA remains neutral in matters of politics and religion. Exceptions may be made with regard to matters affected by FIFA’s statutory objectives”.

143. The Panel finds that the Appealed Decision does not discriminate against a country, private person or group of people, on the basis of political opinion. There is no evidence that the decision was taken because of the political opinion of the Appellant or that it was taken because of FIFA’s view of the military conflict. Whether the Appealed Decision discriminated on account of national origin was not an issue for consideration before the Panel.

144. The Panel observes that there is no definition of “political neutrality” in the FIFA Statutes, other than the reference in Article 4.2 to the requirement for FIFA to remain neutral in political matters or in Article 19 for member associations to manage its affairs independently and without undue influence from an external third party. Based on the information available to it, the Panel finds no evidence that the FIFA Bureau arrived at the Appealed Decision other than by its own independent decision-making. There is no evidence, for example, that the

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FIFA Bureau took the Appealed Decision because of the IOC Resolution or because of a direction from another external third party.

145. As the grounds for the Appealed Decision show, the FIFA Bureau was cognisant of the positions adopted by the Polish FA, the Swedish FA and the Czech Republic FA, and also the reasons why those associations had decided not to compete against the Appellant’s national team in the impending Playoffs. The grounds for the Appealed Decision record FIFA’s view that, “[those] decisions are both fully understandable and cannot be criticized from either a legal or moral point of view”. Whilst the position adopted by the associations was clearly a consideration in the FIFA Bureau’s decision-making process, the Panel finds that it was one of many considerations that the FIFA Bureau took into account because the evidence before the Panel showed that all the consequences of the military action for the organization of FIFA competitions were considered. The Panel considers that the FIFA Bureau acted as it did in response to a set of extraordinary and unforeseen circumstances and not because it favoured a particular political position. While the Panel accepts that the effect of that decision may lend itself to the perception that FIFA favoured a political position, that was an unavoidable consequence of the decision it took.

146. The Panel further finds that while the Appealed Decision may 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 is no evidence that it was taken only because of those views or that it was taken in support of those positions or that it would not have been the same decision irrespective of those views. In the majority’s opinion the Appealed Decision was taken to further FIFA’s statutory objective of organizing its competition and to ensure minimum disruption to and the smooth running of FIFA’s competitions, which, the majority finds was within FIFA’s margin of discretion in the circumstances with which the FIFA Bureau was faced. The majority accordingly finds that on the evidence available to it, no breach of Article 4 occurred.

147. The Appellant alleged that the national associations who refused to play against it were in breach of Article 14(1)(b) and also Article 69 of the FIFA Statutes. It alleged that FIFA supported and endorsed this position whereas it ought to have required the national associations to play the matches. The First Respondent submitted that the Appellant had failed to show how the alleged violation of Article 14(1)(b) would render the Appealed Decision null. Furthermore, it contended that the violation of membership obligations may lead to disciplinary sanctions, although noting that the imposition of such sanctions for such violations are not automatic.

148. The Panel observes that Article 14(1) outlines a member association’s obligations, which include at 14(1)(b), the obligation to take part in competitions organised by FIFA. The Panel recognizes that, it is at least arguable that the Swedish FA, Polish FA and Czech Republic FA were in breach of their obligations towards FIFA, especially coupling the obligation in Article 14(1)(b) with Article 69 which states,“[the] Council shall compile an international match calendar that shall be binding upon the confederations, member associations and leagues […]” which creates a strong inference that it is mandatory for member associations to play in FIFA competitions.

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However, the Panel agrees with the First Respondent that whether there was in fact a breach of Article 14(1)(b) of the FIFA Statutes is an issue more properly addressed through disciplinary proceedings, if any – none having to date been taken – than in these proceedings, and in any event such breach would not render the Appealed Decision invalid. Whether the positions adopted by the Polish, Swedish, and Czech FAs violated any proscription against taking action based on political opinion in violation of the relevant statutory provisions is simply not an issue before the Panel.

149. The Panel accepts that, ordinarily, a refusal to play by one member against another in a FIFA competition should expose the former to the risk of sanction and should not result in any form of detriment to the latter, in particular not its exclusion from the competition, and the Panel’s Award should not be construed to contrary effect.

150. Nonetheless, the majority can only repeat that the circumstances of this particular case are to date unique. The Panel notes the First Respondent’s oral submission that while national associations are obliged to take part in competitions, they cannot be compelled to take part, and that was the situation with which FIFA found itself on 28 February 2022. Not only had the member associations in the Appellant’s group for the Playoffs refused to play the Appellant’s team but there was the potential for other associations to take the same stance further into the competition, with the potential result, had the Appellant’s national team remained in the competition, that the Appellant’s team would have progressed through the World Cup for reasons other than sporting merit. Even had FIFA been able to impose immediate sanctions on a number of recalcitrant member associations, that would not itself have guaranteed that those associations would have come to heel and decided to play in the World Cup. The uncertainty of what was to come, coupled with the necessity to make an immediate decision, contributed to the suspension from participation being imposed. On that basis, the majority accepts that given the information available on 28 February 2022, and the extraordinary and unforeseen circumstances that the First Respondent was faced with, the FIFA Bureau’s decision to suspend the Appellant’s participation despite the refusal of member associations to play against the Appellant’s team was a reasonable decision to take.

b) The Appealed Decision is disproportionate

151. The Appellant submitted that in disciplinary matters the principle of proportionality requires the competent decision-making body to weigh up the individual interest of the member and the general interest of the federation. It contends that the individual is entitled to the mildest possible measure that is still likely to achieve the intended goal. In the Appellant’s view, FIFA over reacted and could have taken a less draconian measure than a suspension, e.g., it could have organized the Appellant’s matches behind closed doors or changed the schedule such as the postponement granted to the Ukrainian Football Association on 8 March 2022. The final draw of the World Cup 2022 took place on 1 April 2022 prior to the completion of qualification and the two winners of the inter-confederation playoffs would not have been known at the time of the draw. The final draw could therefore have been made without final determination of the qualifier on the Appellant’s pathway. As to safety and security, the

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Appellant submitted that the Appealed Decision did not give detailed or sufficient consideration to the possibility of holding matches on a neutral pitch or other measures which could secure these objectives. The Appealed Decision does not provide specific grounds for the imposition of a suspension rather than other less severe measures.

152. The First Respondent submitted that insofar as the Appellant asserts that the Appealed Decision is a disciplinary decision, then proportionality arguments are irrelevant. Insofar as proportionality may be relevant, the Appealed Decision was proportionate because it excludes participation of the Appellant’s national teams from FIFA competitions and still allows the Appellant to continue all its domestic activities and organize football competitions in Russia. In FIFA’s view, on the balance of interests, granting the relief sought would “lead to sporting chaos for FIFA” whose competitions (including its flagship World Cup 2022) would be disrupted. The Second Respondent also submitted that the Appealed Decision was not disproportionate. It stated that the Appellant’s suggestion that “it would be perfectly possible to organize the Appellant’s matches […] on neutral territory and behind closed doors if necessary” did not address the legitimate security concerns that have been raised or explain how this measure would be proportionate as regards to the other teams who played against the Appellants. It submitted that it was unrealistic to claim that playing in neutral venues and/or without spectators would avoid trouble when considering the current worldwide sentiment against the Russian State.

153. The Panel notes that while the Appealed Decision is not a disciplinary decision, as it has found above, the Panel is entitled to assess the proportionality of the measure within the scope of its review of the exercise of FIFA’s discretion, and arguments regarding proportionality are relevant. The majority finds that at the time the Appealed Decision was taken, the Appealed Decision was a proportionate response to the situation as the FIFA Bureau appraised it to be on 28 February 2022, taking into consideration the Appellant’s interest, FIFA’s interest and the interests of the global football community.

154. The Panel observes that FIFA had already, on 27 February 2022, taken the First Decision which stated that no match was to be played in Russia and matches against the Appellant’s team were to be played on neutral grounds. However, in the very fluid situation that FIFA found itself to be in between 24 February 2022 and 28 February 2022, the majority accepts FIFA’s view that maintaining that earlier position had become untenable because of the travel restrictions, sanctions, security concerns, the reaction of member associations, widespread public reaction against the military conflict and, in particular, the uncertainty of the duration and scope of the conflict.

155. The Appellant submitted that while travel is “more complicated” it is “not impossible”. The Panel acknowledges that since 28 February 2022 travel routes may have been adapted and that travel for Russian players, football administrators and teams, while more complicated may not now be impossible. As noted above, the Panel, however, is not considering events that have occurred since 28 February 2022. Its role is not to assess the ease with which Russian citizens and sports teams may travel around the world now but to consider the proportionality of the Appealed Decision taken on 28 February 2022 under the circumstances as FIFA appreciated

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them to be at the time or reasonably predicted them to become. On 28 February 2022, travel restrictions were already in place, making travel to and from Russia challenging, and in the Panel’s view, were a relevant consideration for FIFA to take into account when assessing the participation of the Appellant’s teams in its competitions.

156. The Appellant submitted that FIFA could have changed the match schedule and postponed its Playoff match or delayed confirming the qualifying team on the Appellant’s pathway rather than suspending its national team. Regarding these particular suggestions, the majority defers to FIFA’s considerable expertise to manage its competition match schedule as it sees fit. The majority observes that making a decision to suspend the Appellant’s national team, rather than delaying matches in the hope that the situation would improve in time, is not a disproportionate response, given the uncertainty of the scope and duration of the military conflict.

157. The Appellant submitted that FIFA’s concerns about safety and security could have been allayed through playing on neutral grounds or behind closed doors. The Panel, however, accepts that the very presence of the Appellant’s teams (to be distinguished from the presence of Russian individuals in, for example, non-team sports such as tennis) might generate protests that escalate into violence. It observes that unlike some other sports, football, sadly, has proven over the years particularly prone to extreme crowd reactions that are sourced in racism, nationalism or religious differences. It is not unknown for tensions between different groups to spill over into violence at or around football events, creating security and safety concerns inside and outside a stadium. On this issue, however, it is not for the Panel to decide whether it would have reached the same decision, and it defers to FIFA’s expertise when it comes to assessing the security risk and safety concerns of its competitions and deciding in favour of suspension of the Appellant’s teams, rather than persisting with the position outlined in the First Decision or playing behind closed doors. The Panel notes also that the latter option would have inconvenienced other teams who could reasonably expect to play their matches in front of a crowd but for being drawn against the Appellant’s team.

158. Overall, the majority finds that the Appealed Decision was a proportionate response to the very fluid situation that FIFA found itself to be in on 28 February 2022. The majority finds that FIFA’s interest of organizing its competitions prevailed when considering, in particular, amendments to the international match calendar a few months ahead of the World Cup 2022 and the security concerns for the organization of a competition in which the Appellant’s national team may participate.

c) The Appealed Decision breached the principle of equal treatment

159. The Appellant submitted that when making its decision, FIFA was required to react in a similar manner to previous situations of conflict between States. It asserts that FIFA and UEFA are aware of, and had taken steps to address, the conflict between Russia and Ukraine “for years”. Since Russia annexed Crimea in 2014, a Russia/Ukraine team match has been prohibited for political reasons in all tournaments except for play-offs at the final stage of tournaments. The escalation of tension between the two countries was not a “new argument” on which FIFA could

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adopt the Appealed Decision. Furthermore, there were other examples of conflict situations which had not resulted in the suspension of a sports federation or representative team e.g. neither the Vietnam War between 1955 – 1975, the Iran/Iraq War in 1980 – 1988, or military operations in Afghanistan in 1979-1989 and 2001-2021. There was also no act of any competent international body obliging FIFA to suspend Russian sports teams from international competitions such as, for example, a United Nations resolution. In 1948, German athletes were not allowed to compete in the Munich Games following the decision of the International Military Tribunal at Nuremberg in 1946; and in 1992, paragraph 8(b) of Resolution 757 of the United Nations Security Council resulted in the expulsion of Yugoslav athletes from international competitions, but these situations were not comparable to the present case. Moreover, FIFA had not suspended the Belarusian teams from its competitions. The Respondents deny a breach of the principle of equal treatment.

160. The Panel does not consider it helpful to compare previous global conflicts and the responses of other international sports federations in relation to a particular country’s involvement in those conflicts. The Russian State’s annexation of Crimea or the activities of the Assad regime in Syria, both recent examples of military conflict, have not, for better or for worse, elicited the same global reaction from governments, non-governmental organisations, international bodies or the wider public (whether or not in the view of some people or entities, it should have). The reality is that this military conflict has elicited an unprecedented global reaction, including amongst the general public, and it was the consequences of that reaction to which FIFA considered it was required to act in order to fulfil its statutory objectives.

161. The Panel was referred to the decisions of the European Table Tennis Union Board of Appeal dated 26 April 2022 and the Fédération Internationale de Luge de Course Court of Arbitration decision dated 7 April 2022, both of which dealt with the issue of involvement of Russian teams or athletes in their respective sports, and concluded to varying degrees that they should not be so excluded. The Panel was also referred to the Lawn Tennis Association’s decision not to permit Russian tennis players to participate in Wimbledon in 2022, and the Women’s Tennis Association (WTA), ATP and ITF decisions in response, to remove ranking points for the Wimbledon tournament, and it is a matter of public record that World Athletics have suspended Russian teams and athletes (other than so termed neutral athletes) on the basis that according to its President, such sanctions “appear to be the only way to disrupt and disable Russia’s current intentions and restore peace”.

162. The Panel again does not find it helpful in the present case to compare the approaches of other sports federations, whether more or less stringent, to the participation of Russian teams or athletes in their respective competitions. With all respect to the sports involved, they are not of the same global scale as football and their statutes, regulations, and decision-making processes will differ to FIFA’s. There will also be different factors or different weightings applied to certain factors that were considered when each sport responded in the manner in which it did. The Panel finds accordingly that comparisons to the decisions of other sports federations taken in materially different circumstances and for different reasons, which the Panel cannot and does not pronounce, do not assist in the present case.

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163. Finally, with regards to the Belarusian FA and the participation of its national teams, the Panel accepts the First Respondent’s explanation that no action was taken with respect to the Belarusian FA because at the time the Appealed Decision was taken, the Belarusian national team had already ended its World Cup 2022 qualifying campaign on 13 November 2021 by finishing last in Group E and did not qualify for the Playoffs. There was, accordingly, no disruption to the integrity or the smooth-running of the World Cup 2022 and no need for a decision in respect of the Belarusian FA.

164. For the above reasons, the Panel finds that the Appealed Decision did not breach the principle of equal treatment.

d) The Appealed Decision violated the Appellant’s personality rights recognised in Article 28 of the Swiss Civil Code

165. The Appellant alleged that the Appealed Decision violated its personality rights under Article 28 SCC, in particular its rights to economic development and fulfilment, and to honour (see ATF 134 III 193, 4.3 to 4.6) because it deprived the Appellant of important bonuses and implied that the Appellant’s qualification would bring the world of football into disrepute. It submitted that there was no overriding FIFA interest to justify the serious violation of the Appellant’s personality rights.

166. The First Respondent denied that the Appealed Decision infringed the Appellant’s personality rights and submitted that the Appellant had not proved the alleged violation. Even if the Appealed Decision infringed Article 28(2) SCC, (which was denied) the infringement was justified by FIFA’s overriding interest and statutory objectives of ensuring that its competitions ran smoothly, in the spirit of fair play and that their integrity was always protected. The Second Respondent did not challenge the Appellant’s contention that the Appealed Decision infringed the Appellant’s personality rights. It submitted, however, that FIFA’s legitimate interest of protecting the integrity and safety of its competitions justified the infringement and that the Appealed Decision did not unlawfully infringe the Appellant’s personality rights.

167. Article 28(2) of the SCC provides that:

“1. Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement.

2. An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law”.

168. The Panel recalls previous CAS jurisprudence which defines personality rights under Swiss law as follows:

“The notion of «personality» (or of «personhood») is to be characterized by reference to the fundamental attributes which every person, and in some measure every legal entity such as an association or a corporation,

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has a right to see protected against external intrusion and interference. It is difficult to find definitions in the abstract as there is an indefinite number of liberties, varying from time to time and from country to country, which can be encompassed within the concept of personality rights. Examples are core rights related to privacy, name and personal identity, physical integrity, image, reputation, marriage, family life, sexual life and the like” (CAS 98/200, para 68).

169. In the case of elite sport, the Swiss Federal Tribunal has stated that personality rights encompass:

“En matière de sport de haut niveau, elle englobe plus particulièrement le droit à la santé, à l'intégrité corporelle, à l'honneur, à la considération professionnelle, à l'activité sportive et, s'agissant de sport professionnel, le droit au développement et à l'épanouissement économique”.

Freely translated into English this means:

“In terms of high-level sport, it encompasses more particularly the right to health, bodily integrity, honour, professional consideration, sporting activity and, in the case of professional sport, the right development and economic growth” (ATF 134 III 193, para 4.5).

170. Although the Panel has accepted elsewhere in this decision that it is likely that the Appealed Decision has had an adverse impact on Russian football, the extent of that impact has not been proven. The Panel was not presented with any evidence that would satisfy it to the level of comfortable satisfaction that an infringement of the Appellant’s rights to economic development and fulfilment, and to honour had occurred. The Panel, therefore, finds that on the basis of the evidence available to it, no infringement of Article 28 of the SCC has occurred.

171. In any event, assuming (quod non) that an infringement even arises, the majority agrees with the Respondents that an incursion on the Appellant’s personality rights in the circumstances of the present case are likely justified by FIFA’s overriding interest of ensuring that its competitions run smoothly and FIFA’s security concerns, both of which would amount to an overriding private interest that may justify the infringement if one were found to have occurred, under Article 28(2) of the SCC.

e) The Appealed Decision violated Swiss competition law

172. The Appellant alleges that the Appealed Decision violates Swiss competition law because FIFA as an association within the meaning of Article 60 ff of the SCC and an enterprise within the meaning of the Swiss Cartel Act (see TC VD, CM11.033798), and occupies a dominant position on the market for professional football activities throughout the world. It further alleges that the Appealed Decision is an act of obstruction within the meaning of Article 7 of the Swiss Cartel Act, which is not justified, as well as alleging several other competition law infringements.

173. The Panel notes that the onus is on the Appellant to establish the breach of Swiss competition law and that it did not submit any economic or expert evidence to support the existence of a

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market, FIFA’s dominant position on that market or any of the alleged breaches of Article 7 of the Swiss Cartel Act. The Panel finds that the Appellant did not make a case in relation to the competition law breaches and dismisses the claim. The Panel notes simply that had the Appellant crossed the threshold of establishing the engagement of Swiss competition law, the same issues of justification as arose under the complaints (a) – (d) above would apply.

D. Conclusion

174. For the reasons set out above, a majority of the Panel finds that in the extraordinary and unprecedented circumstances with which FIFA was faced and to achieve its statutory objectives, the Appealed Decision was a reasonable, proportionate and, arguably, necessary, decision to take in order to provide safe, secure and orderly international football events for the rest of the world. The majority finds that the decision did not breach the FIFA Statutes, nor mandatory provisions of Swiss law, and was not an improper use of FIFA’s discretionary power, and falls within the margin of discretion that FIFA has when making decisions that further its statutory objectives.

175. The Panel notes that it was unfortunate that FIFA was required to take the Appealed Decision, for which the FUR, Russian football teams, clubs, and players have themselves no responsibility, but which has had, and will almost certainly continue to have, an adverse effect on them and on Russian football generally, including at the grassroots level. The Panel is cognisant that the majority view is based on extraordinary and unforeseen circumstances arising during a particular four-day period, and that over time the circumstances that persuaded the majority will change. The Panel recalls FIFA’s position outlined in the grounds for the Appealed Decision that the decision is a temporary one, “until further notice and until the situation improves sufficiently to allow teams of the FUR or otherwise affiliate to the FUR to be readmitted” and very much hopes, for the benefit of the entire global football community, that circumstances develop in a way that the suspension can properly be lifted.

176. For the reasons set out above, the Panel dismisses the appeal.

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