Russian Football Union (RFU) v. Belarus Football Federation (BFF), Dansk Boldspil-Union (DBU), Federação Portuguesa de Futebol (FPF), Fédération Française de Football (FFF), Hellenic Football Federation (HFF), Irish Football Association (IFA), Luxembourgish Football, Malta Football Association (MFA), Österreichischer Fussball-Verband (ÖFB), Real Federacion Espanola de Futbol (RFEF), The Football Association (FA), Union of European Football Associations (UEFA)

II. INTRODUCTION

16. This is an appeal against a decision taken by the UEFA Executive Committee dated 28 February 2022 (the “Appealed Decision”) which suspended the participation of all Russian representative teams and clubs from UEFA competitions “until further notice”. The Appealed Decision states as follows:

“Since the last meeting of the UEFA Executive Committee that took place on 25 February 2022, where the topic of the situation related to Russia and Ukraine was discussed and some decisions were taken, the situation in Ukraine has continued to drastically escalate and the international community, including sport organisations, have taken a strong stance against these military interventions. UEFA, has continued evaluating the situation, especially, in the framework of its statutory values, mission and objectives.

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In addition, an increasing number of UEFA national associations publicly voiced their intention to not participate in matches against teams from the Russian Football Union (RFU).

Further, the general public's reaction has the consequence that, even if matches against Russian teams would be staged on a neutral territory, there are serious concerns about the ability to ensure the safety and security for all those involved, i.e. delegations, players, supporters etc. This is of paramount importance for UEFA.

Equally, it has become known that several governments and the EU institutions have imposed flight bans from or to the Russian territory. This would have an additional considerable impact on the smooth staging and running of UEFA competition matches.

Following the above-mentioned reasons, it becomes regretfully evident that UEFA is no longer in a position to fully achieve its objectives as stipulated in the UEFA Statutes under Article 2 par. 1(b) [“promote football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason”] and Article 2 par. 1(d) [“organise and conduct international football competitions and tournaments at European level for every type of football whilst respecting the players’ health”].

Therefore, the UEFA Executive Committee met today and decided that, in order to be able to achieve its statutory objectives, all Russian representative teams and clubs are suspended from taking part in UEFA competition matches, until further notice.

As far as the upcoming Round of 16 matches of the 2021/22 UEFA Europa League between the German club, RB Leipzig, and the Russian club, FC Spartak Moskva scheduled to take place on 10 and 17 March 2022 are concerned, it is uncertain when and if the suspension of Russian representative teams and clubs will be lifted.

Accordingly, in view of this uncertainty and taking into consideration that all pairings for the round of 16 of the relevant competition have been made, UEFA Executive Committee has decided that RB Leipzig is automatically qualified to the next round of the competition”.

17. The legal issues and Parties’ arguments outlined in these proceedings are similar to, and in some parts the same as, those raised in the parallel proceedings, CAS 2022/A/8708 Football Union of Russia v. Fédération Internationale de Football (FIFA) et al., which concerned an appeal brought by the Appellant against FIFA’s suspension of the Appellant’s national teams from FIFA-organised competitions and involved FIFA, UEFA and the Appellant. The Panel appointed in these proceedings was also appointed to hear CAS 2022/A/8708.

18. The present proceedings primarily concern the exercise of UEFA’s discretion to remove the Appellant’s right, provided in the UEFA Statutes, to participate in UEFA-organised 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 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

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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 “an emergence of tensions” or “military operations between States”. UEFA refers instead to “Russia’s invasion of Ukraine” 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 federation’s discretion in the circumstances arising from the conflict by examining those circumstances at the time the decision was taken.

19. 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 International Olympic Committee, 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 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 Appellant’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 these circumstances provided the context in which the Appealed Decision was taken and are relevant to the Panel’s analysis.

20. 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

79. 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 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”.

80. Pursuant to 62.1 of the UEFA Statutes (2021 edition):

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“1. Any decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other Court of Arbitration.

…”.

81. The Appellant relies on Article 62.3 of the UEFA 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. The Panel considers that the more appropriate section of the UEFA Statutes that confers jurisdiction on CAS to adjudicate the present dispute is 62.1, and not 62.3 of the UEFA Statutes as contended by the Appellant. Nevertheless, on the basis of the above, the Panel is satisfied that it has jurisdiction to adjudicate the present dispute.

VII. ADMISSIBILITY

82. 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”.

83. According to Article 62.3 and 62.4 of the UEFA Statutes (2021 edition):

“3. The time limit for appeal to the CAS shall be ten days from the receipt of the decision in question.

4. An appeal before the CAS may only be brought after UEFA’s internal procedures and remedies have been exhausted”.

84. The Panel observes that the UEFA Executive Committee rendered the Appealed Decision, which included grounds, on 28 February 2022.

85. The Appellant submits that the UEFA Statutes provide a time limit of ten days, which expired on 10 March 2022. It submits that the Statement of Appeal was filed in time on 8 March 2022 and that the Appeal Brief was filed within a previously agreed extension and in due form and time on 28 March 2022. It submits that the appeal is admissible. The Respondents do not contest the admissibility of the appeal.

86. The Panel notes that the UEFA Statutes prescribe a deadline of 10 days to file an appeal against a decision made by a UEFA organ and therefore the 10 day time limit prevails over the default 21 day time outlined in Article R49 of the Code. It observes that the Appellant in fact filed its Statement of Appeal on 7 March 2022 (and not 8 March 2022 as it submitted) within the deadline of 10 days and that there appears to have been no other channels for appeal internally. The Statement of Appeal also complies with the requirements of Article R48 of the Code.

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

VIII. APPLICABLE LAW

88. 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”.

89. The Appellant submits that the Panel should primarily apply the “various UEFA regulations and subsidiarily, when relevant, Swiss law”. The First Respondent submits that the UEFA Statutes are applicable, with Swiss law applying subsidiarily.

90. The Panel notes that the Appealed Decision was rendered by the UEFA Executive Committee on 28 February 2022 and that at the time the appeal was filed, the 2021 edition of the UEFA Statutes was in effect.

91. Accordingly, on the basis of the Parties’ agreement to the applicable law, the Panel considers that the UEFA Statutes (2021 edition) constitute the applicable law to the matter at hand. Swiss law applies subsidiarily.

IX. MERITS

92. On the basis 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 UEFA Executive Committee have the competence or power to take the Appealed Decision?

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

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

93. The Appellant submitted that the Appealed Decision was a “purely disciplinary decision” that had deprived it of the right to enter its national teams and clubs in competitions organised by

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UEFA 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”.

94. The First Respondent 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 First Respondent submitted that the reasoning of the CAS Panel in CAS 2008/A/1583-84 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.

95. The Panel recalls that a decision taken by a sports association can be characterised as either an administrative decision or a disciplinary decision (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 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 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 UEFA Executive Committee, which in turn is an executive decision-making body in the UEFA governance structure, and not taken by the UEFA Control, Ethics and Disciplinary Committee or any other UEFA 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.

96. The Panel recognizes that suspending a member association’s right of participation in UEFA 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 UEFA competitions provides. The Panel was not presented with any specific evidence of the extent of the economic effect that the Appealed Decision has had or will have in the future, but it accepts that there will necessarily be an adverse effect 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 First

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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.

97. 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.

98. 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 UEFA Executive Committee to impose a measure to deal with the consequences of a military conflict for football competitions that it organises. 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

99. 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 (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

100. In any event and for the sake of clarity, the Panel finds that insofar as the Appellant alleges that it was not heard or was not invited to put its position to the Executive Committee before the Appealed Decision was taken, the evidence submitted to the Panel showed that the Appellant’s President, Mr Alexander Dyukov, an elected member of the UEFA Executive Committee since April 2021, was present at the UEFA Executive Committee extraordinary meeting on 25 February 2022 at which the Committee discussed the effect of the military conflict for its competitions and took the First Decision, albeit the Panel notes that Mr Dyukov abstained from voting on the First Decision because of the conflict of interest. The Panel accepts that Mr Dyukov was absent from the extraordinary meeting on 28 February 2022 at which the Appealed Decision was taken, but nonetheless finds that the Appellant would have been aware through Mr Dyukov that its involvement in UEFA competitions was to be discussed further at that meeting. The Panel notes the Appellant’s submission that the Appealed Decision was taken “in the absence of the Appellant” but observes that Mr Dyukov appears to have chosen voluntarily not to attend since there was no evidence before the Panel that Mr Dyukov was barred from attending or that he would have been prevented from putting the Appellant’s position had he chosen to attend.

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101. On the basis that the Appellant considered the Appealed Decision to be disciplinary in nature, it submitted that the suspension was disproportionate (CAS 2017/A/5031, para 72). Given that as the Panel has found above, the Appealed Decision was not a disciplinary decision, nor imposed a disciplinary sanction, the CAS approach to review of a sports association’s disciplinary decision is not engaged or in issue.

102. The First Respondent submitted that a sports association had autonomy to make decisions and a level of deference should be extended to an association when assessing the proportionality of a measure (CAS 2019/A/6665, para 157; CAS 2018/A/5800, para 73). 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. The First Respondent also submitted that within the limits of mandatory law (Article 63 SCC), and in accordance with the principle of autonomy of the association, Swiss associations enjoy a wide discretion when it comes to determining their affairs and regulations (CAS 2010/A/2188, para 40). It further contended that the Panel should only interfere with the decision if there was a clear indication that the discretion was somehow abused or exercised for improper reasons (CAS 2012/A/2831, paras 10-12; CAS

103. 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 (CAS 2018/O/5830, para 118; CAS 2017/O/5264, 5265 & 5260, 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.

104. 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, 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.

105. 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 (CAS 2020/A/7090, para 150). The threshold for determining those exceptional circumstances is set high, and “[the] arbitrariness, discrimination or breach must be blatant and manifest, and offend a basic sense of justice” (CAS

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2020/A/7090, para 150). 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 117 to 163 of this award.

106. The Panel emphasises that its 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.

B. Did the UEFA Executive Committee have the competence or power to take the

Appealed Decision?

107. 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.

108. 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.

109. The First Respondent submitted that the Appellant has not challenged the competence of the UEFA Executive Committee to render the Appealed Decision. It submitted that the First Respondent had not addressed Article 65 of the UEFA Statutes at all, which was the provision that UEFA expressly relied upon to adopt the Appealed Decision. It contended that the UEFA Executive Committee relying on Article 65 was competent to render the Appealed Decision. The First Respondent confirmed that the IOC Resolution was considered by the UEFA Executive Committee but “did not serve as an additional legal basis” upon which to pronounce the Appealed Decision. The First Respondent submitted that force majeure was irrelevant, although its position was that there existed, and still exists, “an objective impediment”.

110. The Panel recalls that a private sports association established in Switzerland, such as UEFA, 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 UEFA’s objectives in Article 2 of the UEFA Statutes, which provide as follows:

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“The objectives of UEFA shall be to:

a) deal with all questions relating to European football;

b) promote football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason;

…

d) organise and conduct international football competitions and tournaments at European level for every type of football whilst respecting the players’ health;

…

i) promote unity among Member Associations in matters relating to European and world football;

j) safeguard the overall interests of Member Associations;

k) ensure that the needs of different stakeholders in European football (leagues, clubs, players, supporters) are properly taken into account;

l) act as a representative voice for the European football family as a whole;

…

o) respect the interests of Member Associations, settle disputes between Member Associations and assist them in any matter upon request”.

111. The Panel observes that the UEFA Executive Committee is tasked with managing UEFA and its duties are outlined in Article 24 of the UEFA Statutes. Furthermore, pursuant to Article 65 of the UEFA Statutes, the Executive Committee is empowered to:

“…decide on all matters not covered in these Statutes, such decisions to be made in accordance with relevant FIFA regulations. If no such regulations exist, the Executive Committee shall decide according to right and justice”.

112. The Panel finds that the UEFA Statutes did not provide expressly for the situation in which the First Respondent considered that it needed to respond urgently namely the military conflict in Ukraine and its consequences for UEFA competitions and football in Europe. The majority accepts the First Respondent’s submission that the UEFA Executive Committee was competent on the basis of Article 65 to take the Appealed Decision as a matter not covered by the UEFA Statutes, a submission that is not contradicted by the Appellant.

113. Furthermore, insofar as the Appellant argues that the concept of force majeure is not expressly relevant to the issue of whether the Executive Committee was competent to take the Appealed Decision, the majority agrees. Article 65 does not refer to force majeure as providing the basis

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upon which the UEFA Executive Committee could act, in contrast to the FIFA regulations which expressly refer to force majeure. In the present proceedings, the First Respondent has referred to the circumstances as “matters that are unforeseen” and used the term “objective impediment” to describe the circumstances which it contends necessitated the suspension of the Appellant’s teams from participation in UEFA-organised competitions and is relevant to an interpretation of Article 65, which the majority accepts would be an apt description.

114. 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.

115. 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.

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

116. 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. The First Respondent is not a member of the IOC nor is it recognised by the IOC to enjoy any formal status, so how pronouncements of the IOC might apply to it is a debatable matter which the Panel is not called upon to resolve. Suffice it to say, that the Panel observes that the First Respondent 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 organisations.

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

117. The majority having found that the Appealed Decision was within the UEFA Executive Committee’s competence to take, the issue for the Panel to determine is whether the Appealed Decision violated the UEFA 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.

118. The Appellant submitted that the Appealed Decision:

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a. violated the UEFA Statutes, specifically Articles 1.1, Article 2.1(b), Articles 7, 7bis.2 and 9.1;

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.

119. The First Respondent rejected the allegations. The First Respondent submitted that the Appealed Decision was a valid exercise of its power and fully justified considering its statutory objectives outlined in Article 2 of the UEFA Statutes, including to promote football in Europe “in a spirit of peace, understanding and fair play”, to organise and conduct international football competitions “whilst respecting the players’ health”, and to safeguard the overall interests of its member associations and take the needs of all its stakeholders into account. These statutory objectives were expressly referred to in the Appealed Decision. The First Respondent further submitted that UEFA considered that these objectives could not be met because: i) an increasing number of UEFA member associations had publicly voiced their intention to not participate in matches against Russian teams, putting the viability of its competitions in jeopardy; ii) the general public’s reaction to the conflict, even if matches were to be staged on neutral territory, raised serious concerns about safety and security for all those involved which was of paramount importance to UEFA; and iii) flight bans from and to Russia would have a considerable impact on the “smooth staging and running of the UEFA competition matches”. The Appealed Decision was taken, therefore, to give effect to UEFA’s statutory objectives and in the best interests of the game.

a) Alleged Violation of the UEFA Statutes

120. The Appellant submitted that the Appealed Decision “violates the duty of political neutrality” provided under Articles 1.1, 2.1(b) and 7bis.2 of the UEFA Statutes. It further submitted that UEFA breached political neutrality when adopting the Appealed Decision because it did so under pressure from its member associations. Furthermore, the Appellant submitted that UEFA discriminated against it on a “clearly political basis” by upholding the decisions of certain member associations.

121. The Panel observes that Article 1.1 of the UEFA Statutes provides:

“The Union des Associations Européennes de Football (UEFA) shall be a society entered into in the register of companies under the terms of Art. 60 et seq. of the Swiss Civil Code. UEFA shall be neutral, politically and religiously”.

122. Pursuant to Article 2.1(b) of the UEFA Statutes, UEFA shall:

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“promote football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reasons”.

123. Article 7bis.2 states that:

“Member Associations shall manage their affairs independently and with no undue influence from third parties. Member Associations shall provide in their statutes for a democratic procedure guaranteeing that their executive body is freely elected and that their other bodies are elected or appointed in a completely different way. Any body or decision from a body that has not been elected or appointed in compliance with such a procedure, even on an interim basis, shall not be recognised by UEFA”.

124. The Panel observes that Article 7bis.2 places an obligation on a UEFA member association and not on UEFA and requires a member association to ensure that its decision-making is independent and not influenced by external parties, such as e.g. a national government. The Panel considers that it is not required to determine whether any member association is in breach of Article 7bis.2 because such an allegation falls outside the scope of these proceedings. The Panel also considers that it is not required to make findings as to whether any of the Other Respondents have in fact breached Article 7bis.2.

125. On the issue of whether by taking the Appealed Decision, UEFA breached the principle of political neutrality outlined in Article 1 of the UEFA Statutes, the Panel finds that there is 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”. Based on the information available to it, the Panel finds no evidence that the UEFA Executive Committee arrived at the Appealed Decision other than by its own independent decision-making. There is no evidence, for example, that the Committee took the Appealed Decision because of the IOC Resolution or because of a direction from another external third party.

126. As the grounds for the Appealed Decision provided in Circular No. 10/2022 show, the Executive Committee took into consideration a number of factors when taking the Appealed Decision. Those factors included the escalation of the conflict in Ukraine, the refusal of other member associations to play against the Appellant’s teams, security concerns, flight bans, and the widespread public reaction against the military conflict.

127. Whilst the position adopted by the associations was clearly a consideration in the Executive Committee’s decision, the majority accepts the First Respondent’s submission that the Executive Committee did not arrive at the Appealed Decision because of pressure from member associations. The majority finds that the refusal by some member associations to play against the Appellant’s teams was one of many considerations that the UEFA Executive Committee took into account because the evidence before the Panel showed that other consequences of the military action and their impact on UEFA competitions were also considered. The majority considers that the UEFA Executive Committee 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

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itself to the perception that UEFA favoured a political position, that was an unavoidable consequence of the decision that it took having considered all of the circumstances.

128. 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 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 majority’s opinion the Appealed Decision was taken to further UEFA’s statutory objectives, specifically those of Articles 2(b), (d), (j) and (k), which, the majority finds was within the UEFA Executive Committee’s margin of discretion in the situation with which the Executive Committee was faced. The majority accordingly finds that on the evidence available to it, no breach of Article 1.1 occurred.

129. The Appellant alleges that the First Respondent discriminated on a political basis against the Appellant contrary to the prohibition on discrimination contained in Article 2.1(b) of the UEFA Statutes, “to promote football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason”. The Panel finds that the First Respondent has not discriminated against the Appellant on a political basis. There is no evidence that the decision was taken because of the political opinion of the Appellant or that it was taken because of UEFA’s view of the military conflict or any other entity’s view of the conflict. Whether the Appealed Decision discriminated on account of race or national origin was not an issue for consideration before the Panel. Accordingly, the Panel finds there was no breach of Article 2.1(b).

130. Article 9 of the UEFA Statutes empowers the Executive Committee to suspend a football association’s membership in certain circumstances and provides:

“If in the opinion of the Executive Committee, a Member Association has committed a serious breach of these Statutes or regulations or decisions made under them, the Executive Committee shall be entitled to suspend the membership of the Member Association with immediate effect.

A Member Association may in particular be suspended if state authorities interfere in its affairs in such a significant way that:

a) it may no longer be considered as fully responsible for the organisation of football-related matters in its territory;

b) it is no longer in a position to perform its statutory tasks in an appropriate manner;

c) the smooth running of a competition organised under its auspices is no longer guaranteed; or

d) the free election of its executive body or the totally independent election or appointment of its other bodies is no longer ensured.

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Any suspension shall be submitted to the next Congress for consideration as to whether or not the Member Association should be excluded, or the suspension lifted or continued. If the Congress does not consider the matter, the suspension shall cease”.

131. The Panel finds that there is no evidence that the Appellant seriously breached its obligations under the UEFA Statutes, regulations or any decision made under them, and also, no evidence that UEFA relied on this provision to suspend the Appellant. On the contrary, the Panel finds that the Appellant is still a UEFA member with all the rights and obligations that that entails, excepting, of course, the right to participate in UEFA competitions (discussed further in the following paragraphs) which has been temporarily suspended. The Panel finds no breach of Article 9.1 has occurred.

132. Article 7(e) provides a UEFA Member Association with the right “to take part in UEFA competitions with their representative teams and to enter their clubs for these competitions”. The Appellant states that the Appealed Decision violates this right and that the UEFA Statutes do not permit UEFA to limit this right or to otherwise suspend the Appellant from participation. The Panel accepts that UEFA has a legitimate interest in ensuring that its competitions run smoothly (Order on First Request, para 83). UEFA’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 UEFA competitions and to enter its clubs in UEFA competitions provided in Article 7(e) of the UEFA Statutes.

133. The Panel accepts that the Appealed Decision temporarily denies the Appellant the right to participate in UEFA competitions. Neither Article 7 nor any other provision of the UEFA Statutes expressly state the circumstances in which a member association may be denied the right to participate, although the majority accepts that this would be implicit in the exercise of the power under Article 9.1, which in the present case has not been invoked. The majority observes that the rights contained in Article 7 are not stated to be absolute and the Appellant did not make any submissions that they were. The majority 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.

134. The Panel accepts that denying a member association the right to participate in UEFAorganised competitions when that member has not violated the UEFA Statutes or regulations or a decision made under them, and for which its membership has not been suspended under Article 9.1, 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 UEFA’s interest of ensuring that its competitions, from which considerable income is generated to support the wider football community in Europe, ran smoothly and safely, with minimum disruption in light of the

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prevailing circumstances. Accordingly, the majority finds that UEFA did not breach Article 7(e) when it took the Appealed Decision.

135. The Appellant also submits that the member associations that refused to play it were themselves in violation of Article 7(e) of the UEFA Statutes and that the First Respondent supported and endorsed the member associations’ decisions thereby breaching its obligation to remain politically neutral. The Panel observes that Article 7(e) does not create a mandatory obligation on a member association to participate in a UEFA competition but rather creates a right which a member association is entitled to exercise, subject in certain cases to another prevailing right or interest. The Panel considers that the refusal of some member associations to play against the Appellant’s teams did not breach Article 7(e) of the UEFA Statutes.

136. The Panel was not referred to any other UEFA Statute provision or regulation that creates an obligation on a national member association to play in a UEFA competition. It observes, however, that UEFA competition regulations create duties on member national associations that apply when the national association enters a UEFA competition, and include a duty on a member association to play in a competition until eliminated. Non-compliance with UEFA competition regulations may in certain circumstances lead to disciplinary proceedings under the UEFA Disciplinary Regulations. More specifically, if a national association refuses to play or is responsible for a match not taking place, then the UEFA Control, Ethics and Disciplinary Body may declare the match forfeit by the association concerned, and may impose further disciplinary measures if appropriate (see for example, Article 25 of the UEFA European U- 19 Championship Regulations). The Panel considers that whether a refusal by a UEFA member association was in fact a breach of a provision in a UEFA competition regulation 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.

137. The Panel accepts that, ordinarily, a refusal to play by one member against another in a UEFA 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. Nonetheless, the Panel can only repeat that the circumstances of this particular case are to date unique. Even if UEFA were able to impose immediate sanctions on a number of recalcitrant member associations, that would not itself have guaranteed that those associations would have agreed to subsequently play against the Appellant’s team in a UEFA competition. 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 Executive Committee’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.

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b) The Appealed Decision was disproportionate

138. 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, the suspension is “an extreme measure” in response to a situation with which the Appellant had nothing to do and UEFA could have taken a less draconian measure e.g., it could have organised the Appellant’s matches behind closed doors or on neutral territory, or made changes to its competition schedules. As to safety and security, the 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.

139. The First Respondent submitted that safety and security of UEFA competitions is paramount. Permitting the Appellant’s athletes to participate in competitions would be irresponsible and dangerous for them and for other stakeholders that UEFA is statutorily obliged to protect. Irrespective of age, UEFA considered it irresponsible to put Russian athletes in a position where they were likely to face significant backlash, not only physically but also in other forums, including on social media. It also had an obligation to ensure that other people were protected (e.g., opposing team’s players and staff, all relevant officials, security, and hospitality personnel, amongst others) and to consider the security of individuals who may be impacted not only in the stadium but also in the city and country hosting the event. In the First Respondent’s view, it was doubtful enhanced security measures would be sufficient to guarantee the security of all interested stakeholders because the safety issue goes beyond the boundaries of the playing pitch (reasoned First Order on Provisional Measures dated 8 April 2022). Holding matches on a neutral pitch or without spectators did not ameliorate security concerns and the Appellant had not suggested another measure that was appropriate, feasible or effective.

140. The First Respondent further submitted that the Appellant had not considered seriously the heightened safety and security risks were the Appellant’s teams to participate in UEFA competitions. UEFA’s position regarding the safety and security of all stakeholders at its matches was not an “overreaction” but a real and legitimate concern. It submitted that there had been protests against the military conflict across the world which had attracted hundreds of thousands of people. There had also been reports of a minority of people in certain European cities protesting in support of the conflict. Including the Appellant’s teams in UEFA competitions was “simply asking for trouble”.

141. The First Respondent also submitted that it had an obligation to ensure that its competitions were viable and took place. The disruption of air connections to and from Russia and the risk to the competition’s integrity of a member association’s refusal to play against the Appellant’s team, posed a serious risk to the viability of whether a UEFA competition took place or not, and had financial implications. Since the Order on the First Request, the travel situation to and from Russia had worsened. Member associations who had publicly refused to play against Russian teams initially based their refusal on moral grounds but also had significant concerns

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regarding security risks. The financial risks included the withdrawal of players, teams, fans and sponsors, and the possibility that host cities and countries would refuse to host matches based on legitimate security concerns or other concerns. The First Respondent also submitted that it had an obligation to protect the interests of its member associations. The Appellant’s insistence that matches be played at a neutral venue disregarded the impact such a measure had on the opposing teams and its fans. The First Respondent submitted that it understood that those affected by the Appealed Decision would be understandably disappointed and it was extremely regretful that the decision was required in the first place. The Appealed Decision was not taken lightly but, in the circumstances, “there was simply no possible alternative”.

142. 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 UEFA’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 UEFA Executive Committee appraised it to be on 28 February 2022, taking into consideration the Appellant’s interest, UEFA’s interest and the interests of other European football stakeholders.

143. The majority observes that UEFA had already, on 25 February 2022, taken the First Decision, which was confirmed in Circular No. 08/2022 and informed member associations that, inter alia, no match was to be played in Russia or Ukraine until further notice and that UEFA would continue to assess developments of the situation. The majority accepts UEFA’s view that maintaining that earlier position became untenable because of the security concerns, travel restrictions, the reaction of member associations, and widespread public reaction against the military conflict.

144. 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 abroad now but to consider the proportionality of the Appealed Decision taken on 28 February 2022 under the circumstances as UEFA appreciated them to be 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 majority’s view, were a relevant consideration for UEFA to take into account when assessing the participation of the Appellant’s teams in its competitions.

145. The Appellant submitted that UEFA could have changed its competition schedules rather than suspending its national team. Regarding this particular suggestion, the Panel defers to UEFA’s considerable expertise to manage its competitions’ match schedules as it sees fit. The majority observes that making a decision to suspend the Appellant’s national teams, rather than delaying and rescheduling 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.

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146. The Appellant submitted that UEFA’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 UEFA’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.

147. Overall, the majority finds that the Appealed Decision was a proportionate response to the very fluid situation that UEFA found itself to be in on 28 February 2022. The majority finds that UEFA’s interest of organizing its competitions prevailed when considering, in particular, the security and logistical concerns for the organisation of a competition in which the Appellant’s national team or clubs may participate.

c) Breached the principle of equal treatment

148. The Appellant submitted that when making its decision, UEFA was required to react in a similar manner to previous situations of conflict between States. It asserted that UEFA was 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 had been prohibited for political reasons in all tournaments except for playoffs at the final stage of tournaments. The escalation of tension between the two countries was not a “new argument” on which UEFA could 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 UEFA 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, UEFA had not suspended the Belarusian teams from its competitions.

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149. The First Respondent denied a breach of the principle of equal treatment, submitting in particular, that the examples of previous conflicts provided by the Appellant did not involve Europe, with the exception of the suspension of people representing the Federal Republic of Yugoslavia (Serbia and Montenegro) which was subject to a UN Security Council resolution that expressly requested that States took necessary measures to prevent the participation of people representing the Federal Republic of Yugoslavia (Serbia and Montenegro). It contended that such situation could be distinguished because in the present conflict, i) Russia had a veto right on the UN Security Council which Yugoslavia did not; ii) the Appellant had not shown that the UEFA Executive Committee can suspend a right of participation only if the UN Security Council adopts a resolution to that effect; and iii) the very fact that many other international sports federations have taken measures to address the consequences of Russian athletes competing in their competitions means that such a resolution is not required.

150. As to the situation involving the Belarusian FA, the First Respondent submitted that on 3 March 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 First Respondent submitted that the different treatment of the Appellant 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 as Russia as it was not responsible for the invasion itself”, and also because the UEFA Executive Committee considered that implementing such measures were possible for Belarusian teams and clubs.

151. The majority 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 UEFA considered it was required to act in order to fulfil its statutory objectives.

152. 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”.

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153. The Panel 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 UEFA’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.

154. For the above reasons, the majority finds that the Appeal Decision did not breach the principle of equal treatment.

d) Violated the Appellant’s personality rights recognised in Article 28 of the SCC

155. 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 (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 UEFA interest to justify the serious violation of the Appellant’s personality rights.

156. The First Respondent did not challenge the Appellant’s contention that the Appealed Decision infringed the Appellant’s personality rights. It submitted, however, that such an infringement is unlawful under Swiss law only if it is not justified by an overriding public or private interest. It submitted that UEFA’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. It further submitted that the travel and security situation was “volatile” and “inherently unpredictable” and that this could jeopardise both the integrity of the competitions (for instance if the Russian team was not in a position to play or travel) and the safety of the participants (for instance if the Russian team’s participation inflamed or created trouble in connection with UEFA’s competitions). Furthermore, the possibility to play behind closed doors did not rule out security concerns, and it was “the other team’s prerogative to play in front of an audience” and “the organiser’s legitimate right to have fans at their events”.

157. 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”.

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158. 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, 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).

159. 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” (BGE 134 III 193, para 4.5).

160. 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 majority finds that the extent of that impact has not been proven. The majority 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 majority, therefore, finds that on the basis of the evidence available to it, no infringement of Article 28 of the SCC has occurred.

161. In any event, assuming (quod non) that an infringement even arises, the majority agrees with the First Respondent that an incursion on the Appellant’s personality rights in the circumstances of the present case are 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 may justify the infringement if one were found to have occurred, under Article 28(2) of the SCC.

e) Violated Swiss competition law

162. The Appellant, with reference to a judgment issued by the High Court of Canton Vaud (TC VD, CM11.033798), alleges that the Appealed Decision violates Swiss competition law because UEFA is an enterprise within the meaning of the Swiss Cartel Act which occupies a dominant position on the market for professional football activities throughout Europe. It

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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.

163. 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 market, UEFA’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

164. For the reasons set out above, the majority finds that in the extraordinary and unprecedented circumstances with which UEFA 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 European football’s stakeholders. The majority finds that the decision did not breach the UEFA Statutes, nor mandatory provisions of Swiss law, and was not an improper use of UEFA’s discretionary power, and falls within the margin of discretion that UEFA has when making decisions that further its statutory objectives.

165. The Panel notes that it was unfortunate that UEFA 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 likely 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 UEFA’s position outlined in the grounds for the Appealed Decision that the decision is a temporary one, and that “Russian representative teams and clubs are suspended from taking part in UEFA competitions until further notice” and very much hopes, for the benefit of the entire European football community, that circumstances develop in a way that the suspension can properly be lifted.

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

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