FC Zenit St. Petersburg, FC Dynamo Moscow, FC Sochi, CSKA Moscow, FC Krasnodar, FC Lokomotiv, FC Rostov, FC Rubin Kazan v. Fédération Internationale de Football Association (FIFA)

II. INTRODUCTION

11. The present appeal arbitration procedure has its roots in the events caused by the military invasion of Ukraine, on 24 February 2022, by Russian armed forces.

12. In response to such events, the Bureau of the FIFA Council (the “Bureau”) adopted regulatory measures by means of a new Annexe 7 to the FIFA Regulations on the Status and Transfer of Players (the “FIFA RSTP”) containing “Temporary rules addressing the exceptional situation deriving from the war in Ukraine” (“Annex 7” or the “Temporary Rules”), intended to apply to all employment contracts of an international dimension concluded between players or coaches and clubs affiliated to the FUR or to the Ukrainian Association of Football (the “UAF”). On 20 June 2022, the Bureau adopted a decision (the “Appealed Decision”) approving a revised text of the Temporary Rules (the “Amended Temporary Rules”) and extending its validity.

13. The Appellants are challenging the Appealed Decision, maintaining, inter alia, that i) it was not issued in accordance with the applicable procedural requirements; ii) it did not comply with Swiss and international public policy and other legal principles; and iii) even if such requirements were complied with, FIFA did not adopt the most appropriate measure.

14. FIFA applies for a confirmation of the Appealed Decision.

VI. JURISDICTION

68. Article R47 CAS Code provides as follows:

“An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body. [.]”

69. The jurisdiction of CAS, which is not disputed between the Parties, derives from Article 57(1) FIFA Statutes (2021 Edition), as it determines that “[a]ppeals 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”, and Article R47 CAS Code aforementioned.

70. It follows that CAS has jurisdiction to adjudicate and decide on the present dispute.

VII. ADMISSIBILITY

71. Article R49 CAS 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

award of 12 June 2023 (operative part of 13 January 2023)

of the decision appealed against”.

72. Since the Appealed Decision was notified on 22 June 2022 and the Appellants filed their appeal with CAS on 8 July 2022, the appeal duly complied with the time limit to appeal provided for in the FIFA Statutes.

73. FIFA indicates that the admissibility of the appeal, as such, is not contested. However, FIFA maintains that, insofar the Appellants are bringing forward legal arguments against the adoption of Annex 7 as such, they are challenging a decision which was taken back in March 2022. Any such challenge, and argumentation, is manifestly late and inadmissible. Any arguments raised by the Appellants can only be addressed at the extension in time of Annex 7, but not to its substantive validity.

74. The Appellants argue that they did not challenge Annex 7 when it was first introduced in March 2022, because they legitimately expected that it would expire already on 30 June 2022. The Appellants maintained at the hearing that they were not challenging the Temporary Rules, but only the Amended Temporary Rules and that nothing should prevent them from challenging the Amended Temporary Rules.

75. The Panel finds that the mere fact that the Appellants did not challenge the initial version of Annex 7 does not bar them from challenging the Appealed Decision. The Panel notes that, with the Appealed Decision, the Bureau extended the period for which foreign football players and coaches were allowed to suspend their contracts with clubs affiliated to the RFU. In other words, the Amended Temporary Rules produced effects on the clubs affiliated to the RFU which were different from those, more limited in time, deriving from the original version of Annex 7. There has been no acquiescence with respect to the Temporary Rules and their effects that would have the consequence of preventing the raising of an appeal against the Amended Temporary Rules. The Panel finds that the present appeal is also not in violation of the general legal principle of venire contra factum proprium.

76. Consequently, the Panel finds that the Appellants’ appeal against the Appealed Decision is admissible.

VIII. APPLICABLE LAW

77. Article R58 CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to 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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

78. Article 56(2) FIFA Statutes (2021 Edition) provides the following:

award of 12 June 2023 (operative part of 13 January 2023)

“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”.

79. The Parties agree that pursuant to Article R58 CAS Code in conjunction with Article 56(2) FIFA Statutes, the present dispute is to be adjudicated and decided primarily on the basis of the various regulations of FIFA, and that Swiss law shall be applied should the need arise to fill a possible gap in the regulations of FIFA.

IX. PRELIMINARY ISSUES — A. The Appellants’ Procedural and Evidentiary Requests

80. As mentioned above, the Appellants submitted some requests for production of documents by FIFA, as well as a request that a second round of submissions be allowed.

81. At the same time, the Appellants requested that a public hearing be held in this case. However, on 12 October 2022, the Appellants indicated that they considered this request to be moot, as the hearing would be held by videoconference.

82. On 10 October 2022, the CAS Court Office informed the Parties of the Panel’s decisions in respect of the requests for document production.

83. The Panel notes that, following the CAS Court Office letter dated 10 October 2022 (“The request for production of evidence related to the consultation process with stakeholders initiated by FIFA (Para. 84 and 288 of the AB) is denied, for the time being, as the Appellants failed, at this stage, to establish the relevance of the positions of the stakeholders to decide on the Appellants’ appeal”.), the Appellants did not reiterate or file any new document production request with regard to FIFA’s consultation process. The Panel therefore finds that the Appellants’ request in para. 1 of said letter is moot.

84. With respect to para. 2 of the CAS Court Office letter dated 10 October 2022 (“With respect to the request for production of evidence related to the compliance with formal prerequisites for the Bureau of the FIFA Council to issue the Appealed Decision (Para. 69 and 289 of the AB), the Appellants are invited to state by 12 October 2022 whether they are satisfied with the documents produced by FIFA or whether they wish to specify their request”.), the Appellants, in a letter of 12 October 2022, indicated that they were not in a position to state that they were satisfied with the documentation provided by FIFA and that, in their opinion, FIFA did not discharge its burden of proof regarding the issue raised and reserved their right to further comment on the said matter during the hearing. The Appellants, then, were afforded full opportunity to comment on the evidence relied upon by FIFA at the hearing, but they did not reiterate or file any new document production request with respect to the formal prerequisites for the Bureau to issue the Appealed Decision. The Panel therefore finds that, insofar the Appellants’ request was not already definitively decided by means of the Panel’s letter of 10 October 2022, it is moot.

award of 12 June 2023 (operative part of 13 January 2023)

85. With respect to para. 3 of the CAS Court Office letter dated 10 October 2022 (“The Appellants’ request for a second round of written submissions is granted only for the purposes of addressing briefly the following points: (i) the nature of the Appealed Decision, i.e. whether it contains a general regulatory measure or an individual decision having a sort of disciplinary nature aimed at specific entities, and (ii) the grounds for a challenge of a decision adopting general regulatory measures (with respect, f or instance, the right to be heard of the addressees)”), the Appellants did not object to the Panel’s decision to only partially grant their request.

86. In the same way, the Appellants did not object to the Panel’s decision to dismiss their request after the CAS Court Office letter dated 10 October 2022 with respect to para. 4 (“The request for FIFA to issue the grounds of the Appealed Decision before a second round of written submissions (Para. 87 of the AB) is denied, as the question of the obligation to issue grounds (and whether grounds were given) is part of the substantive dispute”).

87. At the end of the hearing, the Appellants expressly stated that they had no objection to the procedure adopted by the Panel and that their right to be heard had been respected.

88. The requests addressed in paras. 3 and 4 of the CAS Court Office letter dated 10 October 2022 were, therefore, definitively disposed of by means of the afore-mentioned CAS Court Office letter.

B. The Panel’s Decision to Issue the Operative Part of the Award prior to the Reasons

89. During the hearing, the Appellants asked for the operative part of the Award to be issued before the reasons and before the end of 2022. FIFA requested that a fully motivated Award be issued concurrently with its operative part.

90. Article R59(3) CAS Code provides that the Panel “may decide to communicate the operative part of the award to the parties, prior to the reasons”. It is, thus, within the discretion of the Panel to issue either the full award or the operative part only. In the view of the Panel, it was in the interest of good administration of justice to issue the operative part of the award first, because it considered that the Appellants had a legitimate interest in knowing the outcome of the present arbitration before the end of the January 2023 transfer window. Had the Appellants been successful in their appeal, this would have potentially protected it from further foreign football players and coaches suspending their employment contracts and from incurring further financial damages. The Panel did not consider it incumbent to issue the operative part before the end of 2022 as players could also still be transferred in January 2023, although the Panel of course tried to issue the operative part as soon as possible.

91. Consequently, the Panel decided to issue the operative part of the Award prior to the reasons.

award of 12 June 2023 (operative part of 13 January 2023)

X. MERITS — A. The Main Issues

92. The main issues to be resolved by the Panel are the following:

i. Was the Appealed Decision issued in accordance with the formal requirements set by FIFA to issue regulations?

ii. Was the Appealed Decision necessary and proportionate in the pursuit of a legitimate objective?

iii. Was the Appealed Decision issued in violation of the Swiss Cartel Act?

iv. Was the Appealed Decision rendered contrary to general legal principles?

i. Was the Appealed Decision issued in accordance with the formal requirements set by FIFA to issue regulations?

93. The power of the FIFA Council to issue regulations derives from Article 34 FIFA Statutes (entitled “Powers of the Council”), which provides, inter alia, as follows:

“11. The Council shall issue regulations generally and, in particular, the FIFA Governance Regulations.

12. The Council shall deal with all matters relating to FIFA that do not fall within the spere of responsibility of another body, in accordance with these Statutes”.

94. This power of the FIFA Council is reiterated specifically in the context of the FIFA RSTP, based on Article 27 thereof, which provides as follows:

“Any matters not provided for in these regulations and cases of force majeure shall be decided by the FIFA Council whose decisions are final”.

95. The powers of the Bureau are set forth in Article 38 FIFA Statutes (entitled “Bureau of the Council”), which provides, inter alia, as follows:

“1. 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.

2. The President shall convene meetings of the Bureau of the Council. If a meeting cannot be convened within an appropriate period of time, decisions may be passed through other means of communication. Such decisions shall have immediate legal effect. The President shall notify the Council immediately of the decisions passed by the Bureau of the Council.

award of 12 June 2023 (operative part of 13 January 2023)

3. All decisions taken by the Bureau of the Council shall be ratified by the Council at its next meeting”.

96. On this basis, the Panel accepts that the FIFA Council was entitled to introduce the Amended Temporary Rules. By extension, the Bureau was also vested with such competence, provided that an immediate decision between two meetings of the FIFA Council was required.

a. The urgency to issue the Appealed Decision

97. Notwithstanding the foregoing, the Appellants deny that there was an urgency of the situation permitting the Bureau to pass the Appealed Decision.

98. The Panel accepts that the wartime events between Russia and Ukraine required immediate action from FIFA and that the implementation of the Temporary Rules was justified. However, the Appellants challenge that such urgency was still present when the Amended Temporary Rules were implemented.

99. The Panel agrees with the Appellants that there was less urgency for the implementation of the Amended Temporary Rules than for the implementation of the Temporary Rules back in March 2022. Indeed, while the Temporary Rules were in force, FIFA had time to evaluate the Temporary Rules, plan how to approach the situation after the Temporary Rules would expire on 30 June 2022 and leave time between the implementation of the Amended Temporary Rules and their actual entry into force so that the persons and entities affected thereby had time to adjust to the new situation.

100. Nonetheless, although more time was available than for the implementation of the Temporary Rules, the Panel finds that the time between the implementation of the Temporary Rules on 7 March 2022 and the implementation of the Amended Temporary Rules on 20 June 2022 was still relatively short. The Panel finds that the passing of three and a half month did not take away the urgency, particularly considering that it had to be awaited how the Temporary Rules would work in practice and that this had to be evaluated, all within the same relatively short period. The situation became more pressing in May and June 2022, because, if not for the adoption of the Amended Temporary Rules, the Temporary Rules would have expired on 30 June 2022 and foreign football players and coaches registered with Russian clubs would have been required to return to their employers despite the ongoing war. Therefore, when the date of 30 June 2022 was approaching, it became more pressing to find a solution.

101. The Appellants do not specifically argue that, because of the alleged lack of urgency, the FIFA Council should have assumed competence in favour of the Bureau. In any event, the Panel finds that the armed conflict between Russia and Ukraine was sufficiently urgent still in June 2022 to justify the implementation of the Amended Temporary Rules by the Bureau.

b. Additional formalities for the Bureau to issue the Appealed Decision

102. As to the other procedural prerequisites for the Bureau to issue the Appealed Decision, on 17 June 2022, the members of the Bureau, consisting of the President of FIFA and the Presidents

award of 12 June 2023 (operative part of 13 January 2023)

of the six confederations (AFC, CAF, CONCACAF, CONMEBOL, UEFA and OFC) were informed by the FIFA Secretary General of the proposed Amended Temporary Rules. All seven members of the Bureau approved the proposal by email between 17 and 20 June 2022, thereby issuing the Appealed Decision.

103. On 23 June 2022, the FIFA Secretary General informed the FIFA Council of the Appealed Decision issued by the Bureau, indicating, inter alia, that “[i]n accordance with article 38 paragraph 3 of the FIFA Statutes, the above decisions of the Bureau shall be ratified by the Council at its next meeting”.

104. The Panel finds that the Bureau thereby complied with all statutory prerequisites to issue the Appealed Decision.

c. The alleged violation of the Appellants’ right to be heard

105. The Appellants rely on “natural justice”, particularly the right to be heard, in submitting that FIFA was required to involve the RFU and the Appellants in the decision-making process before issuing the Appealed Decision.

106. At the outset, the Panel notes that the proceedings leading to the adoption of the Appealed Decision were not of a disciplinary nature, which would have required affording a right to be heard to those prejudiced by that decision. Rather, the Appealed Decision was issued by FIFA in its capacity as an association exercising its administrative and/or regulatory function, in which area it has a considerably margin of discretion when governing the sport and its members as it deems fit, restricted merely by mandatory rules of law.

107. The Appellants argue that their right to be heard was violated because they were not consulted. At the same time, however, they admit that there was no formal requirement in the applicable rules for FIFA to involve the RFU and the Appellants in the consultation process, as they submit that “it appears to be advisable and good practice to acquire as much information as possible and to hear the views of potentially affected parties before issuing general regulations”. In this respect, the Appellants rely on CAS 98/200.

108. First of all, insofar the Appellants argue that the RFU or the Russian Premier League (the “RPL”) should have been consulted, the Panel finds that this would be something for the RFU and the RPL to argue, but these entities are not parties to the present proceedings before CAS and they have not challenged the Temporary Rules or the Amended Temporary Rules.

109. As to the Appellants themselves, the Panel agrees that it may be advisable and good practice for international sports governing bodies such as FIFA to consult various stakeholders before enacting regulations, but this is not the yardstick to be applied for setting aside the Appealed Decision. What is decisive is that there is no legal norm, either under FIFA Statutes and regulations or under Swiss law, requiring the Bureau to consult the Appellants – as indirect members of FIFA – before issuing the Appealed Decision, or at least no such norm has been identified by the Appellants. In light thereof, the Panel finds that there is no violation of any formal requirement by the Bureau.

award of 12 June 2023 (operative part of 13 January 2023)

110. The Panel feels itself comforted in this analysis by the CAS jurisprudence relied upon by the Appellants:

“[E]ven assuming that for some purposes clubs could be considered as indirect members of UEFA, the Panel is of the opinion that «indirect» members could not be wholly equated with «direct» members. Therefore, clubs could not claim anyway the right to be heard when general resolutions are adopted by UEFA. It is certainly opportune that UEFA consults with at least some of the clubs, or possibly with some of the national leagues, before adopting rules concerning conditions of admission to its competitions, but in the Panel’s view this cannot be construed as a legal obligation under Swiss association law.

With regard to the right to be heard, the Panel wishes to stress that the CAS has always protected the principle audiatur et altera pars in connection with any proceedings, measures or disciplinary actions taken by an international federation vis-à-vis a national federation, a club or an athlete (see CAS 91/53 G. v. FEI, award of 15 January 1992, in M. REEB [ed.], Digest of CAS Awards 1986-1998, Berne 1998, 87, paras. 11-12; CAS 94/129 USA Shooting & Q. v. UIT, award of 23 May 1995, ibidem, 203, paras. 58-59; CAS OG 96/005, award of 1 August 1996, ibidem, 400, paras. 7-9). However, there is a very important difference between the adoption by a federation of an ad hoc administrative or disciplinary decision directly and individually addressed to designated associations, teams or athletes and the adoption of a general regulation directed at laying down rules of conduct generally applicable to all current or future situations of the kind described in the regulation. It is the same difference that one can find in every legal system between an administrative measure or a penalty decided by an executive or judicial body concerned with a limited and identified number of designees and a general act of a normative character adopted by the parliament or the government for general application to categories of persons envisaged both in the abstract and as a whole. The Panel remarks that there is an evident analogy between sports-governing bodies and governmental bodies with respect to their role and functions as regulatory, administrative and sanctioning entities, and that similar principles should govern their actions. Therefore, the Panel finds that, unless there are specific rules to the contrary, only in the event of administrative measures or penalties adopted by a sportsgoverning body with regard to a limited and identified number of designees could there be a right to a legal hearing. For a regulator or legislator, it appears to be advisable and good practice to acquire as much information as possible and to hear the views of potentially affected people before issuing general regulations – one can think of, e.g., parliamentary hearings with experts or interest groups – but it is not a legal requirement. As a United States court has stated, requiring an international sports federation «to provide for

hearings to any party potentially affected adversely by its rule-making authority could quite conceivably subject the [international federation] to a quagmire of administrative red tape which would effectively preclude it from acting at all to promote the game» (Gunter Harz Sports v. USTA, 1981, 511 F. Supp. 1103, at 1122)” (CAS 98/200, paras. 57-58).

111. The Panel does not consider the absence of a specific mandatory stakeholder consultation process in the FIFA Statutes to be surprising or unreasonable, because decisions issued by the Bureau are necessarily urgent. Indeed, if a situation does not require immediate action, the Bureau is not competent to decide. As a corollary, in a situation where immediate action is required, it would be very inefficient to require a sophisticated consultation process. This is all the more true, considering that the various stakeholders would have to be granted sufficient time to submit a meaningful response.

award of 12 June 2023 (operative part of 13 January 2023)

112. The Appellants also rely on jurisprudence of the SFT (ATF 119 Ia 141, consid. 5.c.cc) according to which certain persons – called “special addressees” – are affected much more seriously than “normal addressees” and must be allowed to express their views in the decision-making process.

113. The Panel notes that, even assuming for the sake of the argument that the legislative authority of a Swiss Canton is identical to the regulatory authority of FIFA as an association under Swiss law, the approach set forth by the SFT in the precedent cited is more nuanced than portrayed by the Appellants. In particular, the SFT holds that “this opportunity to express yourself does not necessarily have to exist before the resolution on the plan is passed; according to the case law of the Federal Supreme Court, it is sufficient that objections can be raised as part of an objection or complaints procedure (see BGE 114 Ia 238 ff. E. 2c, cc-cf; FRANÇOIS RUCKSTUHL, Der Rechtsschutz im Zürcherisches Planungs- und Baurecht, ZBl 86/ 1985, p. 287, with further references)” (ATF 119 Ia 141, para. 5.c.bb – free translation into English).

114. The Panel finds that the Appellants’ right to be heard is therefore in any event accommodated by means of the present appeal arbitration proceedings before CAS.

115. Furthermore, although the Amended Temporary Rules in particular affect football clubs in Russia and Ukraine and the foreign football players and coaches employed by them, the Panel finds that such group of addressees is still so large that they cannot be considered as “special addressees”. Also, again considering the urgency of the measure, affording an individual right to be heard to all these clubs and individuals before enacting the Temporary Rules and the Amended Temporary Rules would have impaired the decision-making process.

116. Notwithstanding that it was formally not required to do so, various stakeholders were consulted. In particular, FIFA discussed the Amended Temporary Rules with FIFPRO, the World Leagues Forum, ECA and UEFA, before the Bureau issued the Appealed Decision. These stakeholders had been invited to participate in a videoconference, a draft version of the Amended Temporary Rules was shared with them and they were invited to comment.

117. Given the time constraints, the Panel considers it reasonable for FIFA not to directly involve the RFU and/or Russian clubs (including the Appellants) in this consultation process. The present proceedings relate to the Appellants, and no evidence has been presented that they attempted to intervene in the consultation process prior to the implementation of the Amended Temporary Rules. At the time, the Appellants were members of ECA and the latter was involved in the consultation process. The mere fact that ECA decided on 1 March 2022 that “all Russian members will cease to be involved in ECA activities with immediate effect until further notice” does not make this any different.

118. Considering the circumstances and the urgency required, the Panel finds that it was reasonable of FIFA to keep the number of stakeholders limited to a minimum and to involve only ECA, and to a certain extend World Leagues Forum, as the representative organisations of clubs and leagues respectively, including the Appellants.

award of 12 June 2023 (operative part of 13 January 2023)

d. The lack of a reasoned decision

119. The Appellants maintain that they are not in a position to present a detailed defence on the merits as they were deprived of their right to a reasoned decision.

120. For the same reasons as stated with respect to the Appellants’ right to be heard, the Panel finds that the Appellants are also not entitled to a “reasoned decision”. The latter prerequisite only comes into play in case FIFA exercises adjudicatory or disciplinary functions through its respective bodies. This, however, is not the case here, since FIFA, when issuing the Appealed Decision, exercised its legislative / regulatory function.

121. In any event, the Panel finds that FIFA has been sufficiently clear that Annex 7 was implemented in response of the crisis that arose as a consequence of the armed conflict between Russia and Ukraine and to provide legal certainty and clarity on a number of elements (FIFA Circular Letter No. 1787), “because the war in Ukraine is indubitably having an impact on foreign players and coaches in Russian clubs who want to leave the country, or have already left, as a consequence of the armed conflict” and to “facilitate the departure of these foreign players and coaches” (Interpretative Note).

122. The Panel further notes that such information was publicly available and that the Appellants were therefore also able to defend themselves against any such allegations in the present appeal arbitration proceedings before CAS. The Appellants’ contention that they “cannot wait to find the reasons for the Appealed Decision in the anticipated Answer” is disingenuous. Whether such arguments indeed justify the implementation of the Amended Temporary Rules is a different matter that is assessed below, but the Appellants’ argument that they are unaware of the reasons behind the Appealed Decision is dismissed.

e. Conclusion

123. Consequently, in light of all the above, the Panel finds that the Bureau issued the Appealed Decision in accordance with all formal requirements set forth in the FIFA Statutes and Swiss law. However, this formal validity does not preclude any evaluation concerning the substantive validity of the Appealed Decision. Indeed, it may well be that, although issued in accordance with all formal prerequisites, Annex 7 is still to be invalidated, because, e.g., it is discriminatory or otherwise in violation of applicable mandatory legal principles. Whether this is the case will be assessed below.

ii. Was the Appealed Decision necessary and proportionate in the pursuit of a legitimate objective?

124. The Panel notes that the Appellants raise numerous, and sometimes overlapping, legal arguments in support of their challenge of the Appealed Decision. All arguments raised by the Appellants will be addressed individually below. However, the Panel finds tha t the main issue raised in the present proceedings can basically be reduced to a fundamental one: was the Appealed Decision necessary and proportionate in the pursuit of a legitimate objective?

award of 12 June 2023 (operative part of 13 January 2023)

125. In answering this fundamental question, the Panel first resorts to FIFA’s purported objective underpinning the Appealed Decision, before subsequently turning to the necessity and proportionality of the measures taken to achieve such objective.

126. The Panel considers it important to highlight at the outset that the present appeal arbitration is not about individual employment relationships between the Appellants and the foreign football players and coaches employed by it. Rather, the present procedure concerns the adoption of a regulatory framework, implemented and subsequently extended by FIFA in its capacity as the global governing body of football, vis-à-vis the Appellants, which are indirect members of FIFA, through their affiliation to the RFU, which in turn is a member of FIFA.

127. It is to be noted that on one hand, the terms and conditions of each and every employment contract may be different, including the extent to which Russian law or the FIFA RSTP are applicable to it. On the other hand, the validity of resolutions adopted by FIFA are governed primarily by the rules and regulations of FIFA, and by Swiss law, in accordance with Article R58 CAS Code and Article 56(2) FIFA Statutes. This is even true in case the resolution at stake enacts a regulatory framework intended to apply to some of its indirect members (such as the clubs affiliated to the RFU). This is also not contested by the Appellants. FIFA’s regulatory measures, if intended to affect employment relationships (as the FIFA RSTP and its Annexes do), are inevitably applicable to employment contracts concluded between clubs (as indirect members of FIFA) and their employees. The validity of such regulatory measures, however, is not governed by the laws of any State in which they are applied. Only their concrete application in an individual case might be verified on the basis of domestic laws. However, the compliance with mandatory rules of the jurisdictions affected by the FIFA regulations is not a relevant yardstick when examining the validity of a resolution by FIFA to adopt the regulations in question.

128. In other words, the fact that the introduction and extension of Annex 7 may result in a foreign player invoking Annex 7 to suspend his employment contract with any of the Appellants in violation of Russian law is a matter to be assessed on a case-by-case basis. Indeed, as indicated above, this may depend on the extent to which such employment relationship is governed by Russian law and/or the FIFA RSTP. The FIFA RSTP and Russian labour law are two distinct regulatory/legal frameworks. The FIFA RSTP does not impact Russian labour law and does not deal with claims arising under Russian law. If Russian law is directly applicable, the player concerned may well have acted inappropriately. However, if such employment contract is primarily governed by the FIFA RSTP, the Player may have acted appropriately.

a. FIFA’s objective behind the Appealed Decision

129. According to FIFA, Russia’s invasion of Ukraine caused legal uncertainty in relation to the stability of employment contracts entered into between Russian clubs (including the Appellants) on the one hand, and foreign football players and coaches registered with such clubs on the other hand. It had to be expected that football players may need to flee Ukraine or Russia for security concerns and/or family reasons. There were regular reports of incidents within Russia,

award of 12 June 2023 (operative part of 13 January 2023)

including in Crimea, which is claimed by Russia to be Russian territory. FIFA maintains that, to suggest or to assume that this war would somehow only affect the territory of Ukraine, or even only limited regions of Ukraine, would have been catastrophically wrong. FIFA considers that the only reasonable approach was to take immediate regulatory steps, and to do so equally for both countries involved in this war, and to thus provide regulatory guidance for players and clubs in Ukraine and Russia. In addition, FIFA notes that the situation at the moment the Appealed Decision was issued was far from stable. To the contrary, the war was evolving and had the potential of further escalation.

130. FIFA identified the following regulatory issues that arose due to the ongoing war between Russia and Ukraine in warranting the necessity of providing regulatory guidance:

“Would players of Ukrainian and/or Russian clubs have a ‘just cause’ to immediately terminate their employment contracts because of the rapidly deteriorating security situation?

Would the situation be the same for local players, as opposed to foreign players?

Would clubs in Ukraine and/or Russia have the right to suspend payments to players because of economic difficulties caused by the war?

Would clubs in Ukraine and/or Russia have a “just cause” to unilaterally terminate valid employment contracts because of the deteriorating security situation?

Would the resulting economic difficulties, for example because a championship cannot take place or because a club has been expelled from international competitions, give a “just cause” to clubs to cancel existing contracts or to suspend or delay salary payments?

In case a national championship is stopped, could clubs still meet their basic obligations towards players (e.g., to provide training, medical care and give the opportunity to play competitive matches)? If not, what would the impact be on ongoing contractual relationships?

What if a club no longer has any adequate training facilities at all and/or if a player considers training to be insecure? Does such a player have the right to unilaterally suspend his activities for the club?

Conversely, would such a player face the risk of a severe sporting sanction (i.e., a suspension of several months) if he/she were to leave a club (for example, because of safety concerns), and the FIFA Football Tribunal would subsequently find that this constituted a breach of contract?

Could clubs face severe sporting sanctions (i.e., a transfer ban), if they delay salary payments, and the FIFA Football Tribunal would subsequently find that this constituted a breach of contract?

Could a compromise between the conflicting interests be found, e.g., by offering the possibility to suspend contracts, so that players could temporarily play for clubs abroad? How could this be facilitated, taking into account that many registration windows were closed in March 2022?”.

131. The Panel finds that, although the conflict has so far been taking place particularly on Ukrainian

award of 12 June 2023 (operative part of 13 January 2023)

territory, there are indeed also safety concerns in Russia. Considering that Russia claims to have annexed parts of the Ukrainian territory occupied after the invasion, the war is arguably indeed also taking place on alleged Russian soil. In any event, in a situation where two neighbouring countries are at war, the Panel finds that, at the moment the Appealed Decision was issued, the possibility could not be excluded that there would soon be attacks on Russian territory as well, that the Russian Premier League could be interrupted, etc.

132. The Panel finds it particularly important that governments from around the world have called upon their citizens to leave Russia immediately out of security concerns. The Panel drew the Parties’ attention to such announcements being issued on the official websites of the governments of Germany, France and England. The existence thereof was not contested by the Appellants. The Panel considers this to be publicly available evidence of the security threats faced by foreigners in Russia. Even if there would be no particularly concrete safety threat for one or more of the Appellants, the Panel finds that foreign football players and coaches receiving such general warnings from governments can legitimately feel like they may be in an insecure position. Against this background, the Panel finds that there can be no reasonable doubt that this caused uncertainty and instability in employment relationships between Russian clubs (including the Appellants) and the foreign football players and coaches employed by them, requiring FIFA’s intervention.

133. What is more, the Panel finds it also legitimate for FIFA to accommodate the concerns of foreign football players and coaches registered with clubs in a country that is perceived by a considerably majority of countries as the aggressor in the armed conflict with Ukraine. The foreign football players and coaches were facing (potential internal or external) pressure to side with any of the conflicting parties by either staying in or leaving Russia. This is, inter alia, demonstrated by the international sanctions imposed on Russia and Russian citizens and companies by several countries worldwide. Although, it is true that Russian clubs (including the Appellants) are not responsible for the conflict, what matters is that Russia is currently a country at war that is severely criticized by the international community (in particular from the Western world) whereas this was not the case when the foreign football players and coaches concluded their employment contracts with the Appellants. The foreign football players and coaches may legitimately feel unsafe or subjected to pressure to leave Russia. The Panel finds that such a change legitimizes FIFA’s approach to regulate some of the football-related consequences of Russia’s war against Ukraine in a general, i.e., regulatory manner.

134. The Panel also considers FIFA’s argument reasonable that it wanted to treat Russian and Ukrainian clubs and the foreign football players and coaches registered with such clubs equally in the Amended Temporary Rules, even though the situations in both countries are not identical.

135. The Panel finds that there can be little doubt that, besides being a threat to the life of people residing in Russia, the conflict also caused legal uncertainty in employment relationships in football. Given the significant number of foreign football players and coaches employed in Russia (and Ukraine), the Panel finds it reasonably that FIFA explored options to address the situation in a general manner, in an attempt to provide general regulatory guidance for all

award of 12 June 2023 (operative part of 13 January 2023)

stakeholders affected by the war. This happened not least because the World Leagues Forum and FIFPRO, the international representative organisation for professional football players, jointly urged it to take action. In this respect, it must be added that such request was directly aimed at foreign football players and coaches employed in Russia, not Ukraine.

136. Given the threats caused by the war, the Panel finds that it was reasonable for FIFA to provide general regulatory support for those foreign football players and coaches willing to leave Russia. On the contrary, it would have been unreasonable to expect that foreign football players and coaches would be required to fulfil their employment contracts as if nothing had happened. The consequence of leaving the country without reference to any legal justification would have in fact implied the abandonment of their workplace, exposing them to the risk of potential contractual claims by their employers and disciplinary sanctions. While it would be possible to deal with the football-related consequences of the war also on a case-by-case basis, the legal insecurity of such an approach might have deterred players from availing themselves of their contractual rights. It is well-known that football players involved, or facing a threat of being involved, in contractual disputes encounter difficulties in finding new employ ment. The main reason for this is the principle of joint liability set forth in Article 17(2) FIFA RSTP, i.e., the threat that any new club be declared jointly liable with the player to pay damages to the player’s former club. The extent of a potential liability arising from a breach of contract paired with the joint liability following from Article 17(2) FIFA RSTP may be considerable, resulting in millions of Euros of damages being payable. Consequently, clubs generally try to steer clear of registering such players because of the legal insecurity involved, which point is also confirmed in the submissions of the Appellants.

137. Furthermore, the FIFA RSTP does not provide for a mechanism for football players to seek prior permission to terminate employment contracts. Rather, whether a player or a club had just cause to terminate the employment relationship is only determined retrospectively, with the obvious legal risks this approach implies.

138. In these circumstances, while emphasising again that individual cases are to be examined on a case-by-case basis, the Panel finds that FIFA’s objective in providing general legal guidance in times of exceptional and unprecedented legal uncertainty was legitimate and justified. This was certainly a reasonable basis at the time the initial version of Annex 7 was introduced; the Panel, in addition, finds that it was still valid at the time of the Appealed Decision. Indeed, at the time of issuance of the Appealed Decision, the armed conflict raged on and the future developments remained unpredictable.

b. Was the Appealed Decision necessary and proportionate in achieving the objective?

139. The Panel finds that FIFA’s assessment of the factual situation underlying the adoption of the Appealed Decision is sufficiently accurate and that therefore FIFA was entitled to strike a balance between the legitimate interests of Russian clubs (including the Appellants) and the legitimate interests of foreign football players and coaches by application of regulatory measures.

award of 12 June 2023 (operative part of 13 January 2023)

140. In coming to this conclusion, the Panel accepts that the autonomy of associations is larger in the field of regulatory measures than in disciplinary matters. The majority of the Panel finds that the solution adopted by FIFA to allow foreign football players and coaches to unilaterally suspend (not terminate) their employment contracts remains within the acceptable margin of a federation’s discretion.

1. The priority of providing foreign football players and coaches with the option to leave Russia

141. The Appealed Decision’s primary focus is to address the existing security risks and the potential resulting threats to contractual instability of foreign football players and coaches in Russia. While the Panel considers it to be legitimate, this focus entails unavoidable disadvantages for Russian clubs as such measures had the potential of depriving them of the services of their foreign football players and coaches.

142. The Panel finds that the Appellants did not put forward any feasible alternative measure that would have ensured the safety and contractual stability of foreign football players and coaches while continuing to perform their duties as employees of the Appellants.

143. Accordingly, in assessing the proportionality of the Amended Temporary Rules one has to start from the presumption that foreign football players and coaches could not be required to continue performing their employment contracts as normal. Thus, the interests of the players and coaches wanting to leave their employment because of the conflict must be valued higher than the interests of the clubs to retain their services as if nothing has happened. The question, however, is whether the Russian clubs are entitled to some kind of compensation because of the potential loss of services by their foreign football players and/or coaches and the loss of the opportunity to transfer players to third-party clubs for a transfer fee. The implied issue is whether the absence in Annex 7 of any rules addressing the issue of compensation in favour of Russian clubs makes the Appealed Decision illegal.

2. Financial reparation for Russian clubs

144. The Appellants submit that FIFA should have included in the Amended Temporary Rules a mechanism to compensate the Russian clubs for their loss as a result of the Russian armed conflict with Ukraine. However, who should pay such compensation, if any? FIFA, the foreign football players and coaches entitled to invoke the Amended Temporary Rules, agents/intermediaries, and/or the third-party clubs that might register the foreign football players and coaches following the suspension of their employment contracts?

145. The Panel, as a preliminary remark, notes that any regulatory measures may impact the economic conditions or the financial interests of their addressees: if the FIFA system is considered, for instance, the rules contained in the FIFA RSTP allowing the players to terminate employment contracts for sporting just cause have an effect on existing employment contracts; or the rules on the release of players to allow them to play with

award of 12 June 2023 (operative part of 13 January 2023)

national teams prevent clubs from requesting the sporting performance by players during the period for which they have been released or should have been released pursuant to the provisions of the FIFA RSTP (Annexe 1), plus an additional period of five days (Article 5 of such Annexe). The majority of the Panel considers that such impact, however, does not necessarily imply that reparation for any adverse effect of economic nature is to be paid in all such situations. As a result, and in other words, the fact that the Amended Temporary Rules allowed players and coaches to suspend for a limited period performance under the existing employment contracts, in the pursuit of a legitimate objective, does not make the Appealed Decision per se illegal even though they might have caused a financial prejudice to the Russian clubs.

146. Commencing with FIFA, the Panel finds that, even though the Amended Temporary Rules are enacted by FIFA, it does not appear fair to make FIFA pay compensation for the loss suffered by Russian clubs (including the Appellants) because of the Russian war agai nst Ukraine. FIFA does not financially profit from allowing players and coaches to leave a country at war based on the Amended Temporary Rules. In such circumstances, it is not appropriate to require FIFA to compensate Russian clubs financially. FIFA may obviously do so as a token of support, but there is no legal requirement to do so.

147. Turning to the foreign football players and coaches that may invoke the Amended Temporary Rules to suspend their employment relationships, the Panel finds that they, in principle, also do not necessarily derive a financial profit from the war. Indeed, by suspending their employment contracts, they at least temporarily forfeit their entitlement to receive a salary. At the same time, had FIFA remained inactive, the players and coaches (who did not dare take the risk of a legal dispute for breach of contract and remained with the Russian clubs) would have risked remaining without a salary, in light of the uncertain situation in Russia. This would have been a financial prejudice, rather than a profit. In an attempt to accommodate these players and not to deprive them of the possibility to earn an income, the Amended Temporary Rules allowed them to temporarily register with other teams.

148. In addition, not all foreign football players and coaches may be in the fortunate position of immediately finding alternative temporary employment to recuperate their loss of income. Also, knowing that foreign football players and coaches that have invoked the Amended Temporary Rules find themselves in a situation of unemployment, potential new clubs acquiring their services may well exploit their stronger bargaining position by offering lower salaries than the foreign football players and coaches would otherwise have been able to receive.

149. At the same time, the Panel recognizes the possibility that some foreign football players and/or coaches financially benefitted from invoking the Amended Temporary Rules to suspend their employment contract with Russian clubs (including the Appellants) and subsequently concluding an employment contract under more favourable financial terms. The majority of the Panel finds that this possibility does not change the financial condition of the Appellants. If players or coaches suspend their employment relation because of fear of wartime dangers, or because they receive an offer for a higher income, the employment contract would be in any case suspended. Indeed, the majority of the Panel finds it difficult

award of 12 June 2023 (operative part of 13 January 2023)

to link potentially significant financial damages for Russian clubs (including the Appellants) deriving from the suspension of an employment contract to the financial conditions agreed between a player or a coach suspending the employment contract and a third club.

150. Against such background, however, the Panel finds that an abstract scenario could be imagined under which Russian clubs (including the Appellants) file claims for unjust enrichment against such players and/or coaches, to recoup at least part of the financi al profits made, thereby more equally dividing the financial setback as a result of the armed conflict and FIFA’s regulatory measures in response. Although such claims for unjust enrichment would have to be examined on their own merits depending on the specific facts and circumstances of each case, Articles 62(1) et. seq. SCO appear to provide Russian clubs (including the Appellants) with options in this respect:

“A person who has enriched himself without just cause at the expense of another is obliged to make restitution”.

151. The same observations can be made with respect to agents and/or intermediaries, who may also have potentially enriched themselves at the expense of Russian clubs (including the Appellants) on the basis of Annex 7.

152. Finally, the Panel notes that the clubs registering players who have invoked Annex 7 to suspend their employment contracts could potentially profit from Annex 7 and abuse it. Indeed, such clubs have the opportunity to acquire foreign football players and/or coaches on a temporary basis, without the consent of the club of prior (and pending) registration and without any transfer fee being payable. The Panel notes in addition that it may also happen that the employment contracts in question, temporarily suspended, expire during their suspension period, depriving the Russian clubs of the opportunity or chance to transfer such players and/or coaches to third-party clubs for a transfer fee. The Panel considers it a possible scenario that clubs, that have initially temporarily registered foreign football players and/or coaches that suspended their employment contracts with Ukrainian clubs on the basis of Annex 7, eventually register such employees on a permanent basis. Accordingly, from a financial perspective, such clubs have the potential of financially benefitting, in a significant manner, from Annex 7.

153. The majority of the Panel finds however that, as argued by FIFA, requiring such clubs to pay a predetermined loan fee (and/or transfer fee) would have been difficult to incorporate in a set of rules such as Annex 7, not least because this would create a significant obstacle for foreign football players and coaches to leave Russia in these exceptional wartime circumstances, and find suitable alternative employment. As a result, on balance, the Panel holds that the absence of any mechanism in the Appealed Decision to prevent new clubs from gaining an advantage to the detriment of Russian clubs does not affect the validity of the Amended Temporary Rules per se.

154. Nonetheless, the Panel finds it disturbing that such new clubs may potentially obtain a financial advantage in the form of the registration of football players and/or coaches for which they did not have to pay any transfer fee to acquire their services, while potentially making significant

award of 12 June 2023 (operative part of 13 January 2023)

profits on such players and/or coaches by subsequently transferring them to other clubs for a transfer fee.

155. Again, from a general fairness perspective, the Panel would find it difficult to justify a situation in which only Russian clubs (including the Appellants) would be suffering potentially significant financial losses from the suspension of an employment contract, while the new clubs would profit from it financially. Therefore, although entirely subject to the individual circumstances of each case, the Panel finds it conceivable (without asserting it with certainty) that in the above-mentioned scenarios Russian clubs (including the Appellants) may seek to be compensated by such clubs, if they indeed unduly enriched themselves. From a general fairness perspective, it would certainly not be unreasonable that such clubs may be called to share at least part of the windfall profits they would not have been able to realise if not for the introduction of the Amended Temporary Rules.

156. The matter can however be left open. The Panel finds in fact that these considerations do not make the Amended Temporary Rules per se unreasonable, as these rules primarily serve the purpose of permitting foreign football players and coaches to leave the country for safety reasons, which is a justifiable objective. It may be added here that public statements made by players after having suspended their employment contracts are not necessarily determinative in providing the real reason for departure. A player may, for instance, try to maintain a good relationship with the Russian fan base of his club and therefore make positive public statements about Russia in general. This does not necessarily mean that such player invoked the Amended Temporary Rules for disingenuous reasons.

157. Further, the possibility for Russian clubs of filing individual claims against foreign football players and coaches, intermediaries/agents and third clubs was also contemplated by FIFA in its letter to counsel for the Appellants on 8 July 2022, by stating as follows:

“Finally, regarding the “issues not covered” that you have raised in your correspondence, we would like to kindly inform you that the majority of those issues would seem to fall within the competence of the relevant decisionmaking bodies of FIFA (the Football Tribunal), to be assessed on a case-by-case basis in the event of a specific dispute”.

3. Potential cases of abuse of the Amended Temporary Rules

158. The Panel finds that the above considerations also apply with respect to potential cases of abuse of the Amended Temporary Rules, when players, agents/intermediaries or other clubs invoke Annex 7 for illegitimate purposes, i.e., for purposes other than those for which the Appealed Decision was adopted.

159. The Amended Temporary Rules do not deal exhaustively with any and all types of questions arising from the circumstances at the basis of its adoption. However, in the event that the opportunity offered by Annex 7 is exploited for illegitimate and/or disingenuous purposes, Russian clubs (including the Appellants) should have access to justice, and seek a remedy against such persons or entities, inter alia, on the basis of Article 2 SCC, which provides as

award of 12 June 2023 (operative part of 13 January 2023)

follows:

“1. Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations.

2. The manifest abuse of a right is not protected by law”.

160. Whether there is any abuse must be ascertained by properly constituted adjudicatory tribunals or courts in light of the individual circumstances of each case; all particular contingencies cannot be covered by general rules.

161. In terms of situations of abuse, one could for example think of foreign football players and/or coaches exerting undue pressure on Russian clubs (including the Appellants) shortly before the start of a match to demand additional payments in exchange for waiving their right to suspend their employment contract. Demanding an additional payment may not per se be unreasonable, but the content of the demand and the moment of making it and other facts and circumstances may make it unreasonable. Also, generally speaking, the longer a foreign football player or coach waits to suspend his employment contract, the less likely it becomes that Annex 7 is invoked for legitimate purposes.

162. The Panel finds that it would go too far to make a general distinction in the Amended Temporary Rules and apply a different regime to foreign football players and coaches that had already suspended their employment contracts under the Temporary Rules and those that did not, as suggested by the Appellants. Such distinction would ignore the unstable situation between Russia and Ukraine and the consequences this may have on individual employment relationships.

163. Furthermore, as indicated in FIFA Circular Letter No. 1800, with the Appealed Decision “the Bureau of the FIFA Council approved further temporary amendments to the FIFA regulatory framework in order to extend the legal framework of the current Annexe 7 to the RSTP until 30 June 2023” (emphasis added by the Panel). Accordingly, employment contracts suspended under the Temporary Rules in principle do not have to be suspended again under the Amended Temporary Rules, but they remain suspended.

164. The general point remains that, in a case where it is found that a foreign football player or coach merely exploited the option to suspend his employment contract under the Amended Temporary Rules for the sole purpose of obtaining an excessive amount of additional compensation, without any genuine fear for his welfare being at stake, this may well lead to a conclusion that the rules were invoked in a manner inconsistent with its purposes. Whether this is the case is to be assessed on a case-by-case basis.

165. Another example of potential abuse would be a foreign football player or coach that has received a contractually agreed sign-on fee, i.e., a lump sum payment per season, but subsequently invokes Annex 7 to suspend his employment contract without paying back the relevant pro rata part of the sign-on fee.

award of 12 June 2023 (operative part of 13 January 2023)

166. A final example of potential abuse could also be that of a foreign football player or coach who unreasonably refuses to discuss a possible extension of the term of the employment contract temporarily suspended that has not expired when Annex 7 ceases to have effect, for the period during which the employment contract was suspended.

167. This overview of potential cases of abuse is not exhaustive and the Appellants refer to various types of potential abuse in their submissions. Indeed, there may be various additional types of abuse that could entitle the Appellants to restoration. Such claims are however to be addressed on a case-by-case basis, based on the specific circumstances of such situation.

168. Again, while the above may provide some restoration to the Appellants, the majority of the Panel finds that none of the circumstances mentioned above affect the substantive validity of the Amended Temporary Rules as such, because these rules are aimed to protect foreign football players and coaches who invoke Annex 7 for legitimate purposes, not the ones invoking them for illegitimate purposes.

4. The temporal scope of the Amended Temporary Rules

169. Another element of the Amended Temporary Rules that is challenged by the Appellants is the temporal scope of the Amended Temporary Rules, as the Appellants maintain that the Bureau should not have extended the validity of Annex 7 until 30 June 2023, but that the extension should have been limited to a one-week maximum or, as FIFA did with Ukraine, prohibit outgoing foreign player transfers/registrations before 1 August 2023.

170. In this respect, the Panel finds that it was indeed reasonable for the Bureau to extend the validity of Annex 7 until 30 June 2023, because this is when the football seasons in Russia (and Ukraine) normally end. It is therefore a natural moment to re-evaluate the necessity of potential further measures, while limiting interference with squad compositions during the football season.

171. The Panel also remarks that it was not desirable to leave foreign players in doubt as to whether they would be required to return to Russia in accordance with their employment contracts in the course of the football season. The extended one-year validity provides a certain stability for all impacted by the war. Indeed, the Panel finds that it was not unreasonable for the Bureau to assume that the conflict would not end before 30 June 2023.

172. The Panel finds that shortening the period within which foreign football players and coaches could suspend their employment contracts with Russian clubs would not have accommodated for the uncertainty of the safety situation in Russia. Indeed, should such period have expired and a particular safety threat would jeopardize the safety of a foreign football player or coach, such person would not be entitled to invoke Annex 7. This would render the Amended Temporary Rules largely ineffective, as its goal is to provide foreign football players and coaches with the possibility to suspend their employment contracts if they wish to leave Russia out of fear for their physical well-being.

173. In any case, in the Circular Letters it issued (Nos. 1787, 1788, 1800 and 1804), FIFA emphasized

award of 12 June 2023 (operative part of 13 January 2023)

that Annex 7, adopted as a result of the war between Russia and Ukraine, would be periodically reviewed and removed accordingly, and that it would continue to monitor the situation closely.

5. Persons / entities disadvantaged by the Amended Temporary Rules

174. The Panel further notes that the Appellants argue that the Amended Temporary Rules are solely in favour of foreign football players and coaches. The Panel does not consider this to be the case. Indeed, the Amended Temporary Rules also have advantages for Russian clubs (including the Appellants).

175. First of all, a suspension of an employment contract also temporarily relieves Russian clubs (including the Appellants) of their burden to pay salaries to the foreign football players and coaches concerned. Although this may not compensate Russian clubs for the loss of chance to transfer these players for a transfer fee, it does compensate them for the loss of services. Actually, the suspension of an employment contract releases both parties from their duties, as a consequence of which the quid pro quo of the employment relationship remains balanced.

176. Furthermore, the Amended Temporary Rules prevent foreign football players and coaches from terminating their employment contracts with Russian clubs, a scenario the Panel considers to have been realistic if not for the implementation of the Amended Temporary Rules. Indeed, FIFPRO and the World Leagues Forum requested FIFA to issue regulations permitting foreign football players and coaches to terminate their employment contracts with Russian clubs with just cause. Such measure would have been significantly more prejudicial for Russian clubs than the compromise currently implemented. The Panel finds that this is demonstrative of the fact that the Bureau did not blindly follow the demands of some of its stakeholders, but that it also duly considered the interests of the clubs concerned.

177. In fact, by only permitting foreign football players and coaches to suspend their employment contracts, the possibility was kept open for such foreign football players and coaches to resume their contractual relations after the expiration of the suspension and/or allowing Russian clubs to monetize on the market value of the foreign football players by transferring them for a transfer fee.

178. Furthermore, unlike for Ukrainian clubs (for whom employment contracts were automatically suspended under the Temporary Rules), the Temporary Rules and the Amended Temporary Rules provided Russian clubs, foreign football players and coaches with the discretion to opt out of the suspension mechanism by reaching alternative arrangements. The Panel finds that this is another important element demonstrative of the fact that FIFA was not blind for the interests of Russian clubs.

179. Related to this point is that the transfer market was not foreclosed to Russian clubs. Indeed, despite the adoption of the Amended Temporary Rules, new foreign players could join the ranks of the Appellants. According to the Appellants, 42 new foreign football players “came to Russia” after 24 February 2022. What is more, football players and/or coaches acquired after the introduction of Annex 7 may well be deemed to have waived their right to invoke Annex 7

award of 12 June 2023 (operative part of 13 January 2023)

to suspend their employment contracts. Indeed, concluding a new contract is in principle to be considered as an alternative arrangement permitted by the Amended Temporary Rules. Whether this is indeed the case in an individual situation depends on the specific facts and circumstances.

180. Finally, the Panel also notes that the Amended Temporary Rules only apply to international employment relationships and therefore do not impact the employment contracts concluded between Russian clubs (including the Appellants) and domestic football players and coaches. While FIFA is primarily competent to govern the international aspects of the sport, the RFU is primarily competent to govern its domestic dimension in Russia. This limit to FIFA’s power raises doubts as to the possibility for FIFA to extend the scope of the Amended Temporary Rules also to domestic employment relationships; on the contrary, not doing so and refraining from exercising any pressure on the RFU to implement similar rules at domestic level must have provided some relief to Russian clubs.

181. In view of the above, the Panel finds that the Amended Temporary Rules were not only in the interest of foreign football players and coaches, but that they also produced some beneficial effects to Russian clubs.

182. In general, the Panel finds that the Appellants do not suggest viable alternative measures that would have achieved the objective behind the Appealed Decision, all the while being less burdensome for Russian clubs.

183. Several suggestions raised by the Appellants have been addressed in the sections above, in particular with respect to potential cases of abuse, which the Panel considers are best addressed in individual proceedings, but which do not render the Amended Temporary Rules invalid as such.

184. As to other alternatives proposed by the Appellants, the Panel does not consider a prolongation of the existing employment contracts for a period equal to the suspension to be a suitable alternative, reducing its impact on Russian clubs, as such measure would unduly interfere with the contractual freedom of the parties, modifying only one of the elements (the term) of an agreement originally entered into in consideration of a plurality of factors. Also, given that the conflict may continue for a long time, this would entail that employment contracts would be extended for significant periods, potentially even beyond their original date of expiry. The Panel finds that this would cause less as opposed to more legal certainty, thereby undermining the main goal of Annex 7.

6. Continuation of the Russian Premier League

185. The sole fact that the RPL has never been suspended does not have an impact on the Panel’s analysis.

186. The Panel finds that, at the moment of adoption of the Appealed Decision, the Bureau had to consider the scenario that the armed conflict would escalate further, thereby continuing to jeopardise the safety of foreign football players and coaches. Accordingly, although the Russian

award of 12 June 2023 (operative part of 13 January 2023)

Premier League continued like normal until the moment the Appealed Decision was issued, the security situation was insufficiently stable to assume that the Russian Premier League would run its course in an ordinary and safe fashion for the foreign football players and coaches. Under such circumstances, it could not be reasonably expected from foreign football players and coaches that they remain in Russia and be required to comply with the obligations under their individual employment contracts as if there was no war.

7. Financial and sporting damage for Russian clubs and balance of interests

187. The Appellants argue that players and coaches are assets of the clubs and that FIFA, only for Russian and Ukrainian clubs, disapplied the principle of contractual stability, thereby annulling the transfer system that is based on such principle, resulting in a loss of profit that is difficult to estimate, but that is predicted to be millions of Euros. The Appellants argue that such consequences are not inherent to the objective and disproportionate.

188. The Appellants provide the following statistics, albeit without substantiating these figures with evidence beyond mentioning the names of the players/coaches and clubs concerned:

“Only 19 out of 121 (15.7%) foreign players registered in Russia on February 24, 2022, unilaterally suspended their contracts in March or April 2022 based on the initial version of Annex 7 (Exhibit A19);

Another 13 out of 121 foreign players (10.74%) left Russia in March or April 2022 after the mutual termination of their contracts (Exhibit A20);

22 foreign players who did not suspend their contracts the first time suspended their contracts for the first time after the Appealed Decision was notified on June 21, 2022 (exhibit A21);

Only six foreign players suspended their contracts twice, both in March/April 2022 and in July 2022 (Exhibit A22);

37 out of 98 (37.76%) foreign players registered in Russia for the 2022/2023 season signed contracts with Russian clubs for the first time in June or July 2022 (Exhibit A23), including Ukrainian player Olexandr Masalov, who signed with FC UFA (Exhibit A23.1);

11 out of 98 (11.23%) foreign players registered in Russia for the 2022/2023 season either extended their contracts or moved to other Russian clubs during the 2022 summer registration period (Exhibit A24);

Three new foreign head coaches out of 16 (18.75%) currently appointed in Russian football have signed employment contracts with Russian clubs after the Appealed Decision was rendered (Exhibit A25) ” (emphasis omitted by the Panel).

189. While acknowledging that the value of football players may be included in the balance sheets of football clubs, the business of transferring football players is obviously not the same as the purchase and sale of goods or commodities, not least because players are human beings and that their consent is required for a transfer to take place.

award of 12 June 2023 (operative part of 13 January 2023)

190. In fact, unlike goods or commodities, football players themselves need to agree to their transfer, be it permanent or temporarily. Even though a football player’s transfer value may be estimated at tens or hundreds of millions of Euros and although two clubs may agree to transfer the player between them for a certain transfer fee, if such player refuses and opts to execute his employment contract until its expiration and refuses to extend it, he becomes a free agent and the club that held his registration does not receive any transfer fee.

191. Although the majority of the Panel is prepared to accept that the Amended Temporary Rules have a negative impact on the Appellants’ business of transferring football players, there is no guarantee that football players registered with the Appellants, who have invoked the Amended Temporary Rules to suspend their employment contracts, would otherwise have helped the Appellants to obtain transfer fees. At best, the Appellants have been deprived of the chance to monetize the transfer value of the foreign football players registered with them, which only equates to a loss of opportunity or chance. The latter, however, would only be the case, if the war situation would not be qualified as a just cause for the player or coach to terminate their employment contract. Thus, the lost opportunity or chance may appear quite vague.

192. The Appellants have also not demonstrated any concrete damages arising out of the implementation of the Amended Temporary Rules as such, i.e., without considering the Temporary Rules (that were not challenged) and the unstable situation that arose as a consequence of the Russian invasion of Ukraine. Indeed, the Appellants have not established that the introduction of the Amended Temporary Rules as such “were devastating for the Appellants” and jeopardised their “existence”, as argued by the Appellants. The consequences of the war itself and the Temporary Rules issued in response may already have caused a significant portion of the damages inflicted on the Appellants and it is unclear to what extent the Amended Temporary Rules contributed to the Appellants’ damages, if at all.

193. The majority of the Panel also finds that the implementation of the Amended Temporary Rules did not per se undermine the sporting integrity of the Russian championship. Indeed, for domestic competitions in Russia, the impact of Annex 7 is in principle the same for all clubs participating therein. Although it is of course true that certain clubs have more foreign football players, or a coach, as employees than others, the rule applies equally to all.

194. Since Russian clubs were excluded from participation in European competitions already before the implementation of the Amended Temporary Rules, the Amended Temporary Rules did not cause any sportive prejudice to the Appellants at an international level.

8. Conclusion

195. Consequently, in view of the above assessment, the majority of the Panel finds that the Appealed Decision was necessary and proportionate in the pursuit of a legitimate objective and is valid as such.

196. Overall, the majority of the Panel finds that FIFA, with the Appealed Decision, struck a justified

award of 12 June 2023 (operative part of 13 January 2023)

and proportionate balance between competing interests in order to achieve the objective of providing regulatory guidance to avoid legal uncertainty in an extraordinarily dramatic situation, duly considering the expectations of foreign football players and coaches as well as Russian clubs.

197. This conclusion however comes with some caveats. As emphasised above, the mere fact that the Amended Temporary Rules are valid, does not mean that all foreign football players or coaches that have invoked Annex 7 to suspend their employment contracts did so for legitimate reasons. Whether this is the case must be assessed on a case-by-case basis in view of all the specific circumstances of such individual employment relationship. Potential cases of abuse of Annex 7 are not to be condoned.

198. Also in the absence of abuse, in some situations mentioned above, the Appellants may still have recourse against persons or entities that benefitted financially from the Amended Temporary Rules to the detriment of the Appellants. This does not only concern the foreign football players or coaches that have invoked Annex 7 to terminate their employment contracts, but also to agents/intermediaries and third-party clubs that may potentially have obtained undue financial advantages because of Annex 7. This may include claims for unjust enrichment on the basis of Articles 62 et seq. SCO.

iii. Was the Appealed Decision issued in violation of the Swiss Cartel Act?

199. The Appellants maintain that FIFA abused its dominant position and thereby violated the Swiss Cartel Act.

200. The Panel finds that the Appellants’ position is insufficiently substantiated to justify a full - fledged analysis of an alleged competition law infringement. Indeed, the Appellants do not even substantiate why the Swiss Cartel Act can be invoked by Russian legal entities or that the Swiss market was somehow impacted by the Amended Temporary Rules. Furthermore, as argued by FIFA, the Appellants do not define the relevant product and territorial markets. This is relevant because, as addressed above, the market for football players is unusual and is not directly comparable with markets for goods or commodities.

201. In any event, for the reasons set forth above, the Panel finds that any alleged distortion of the market by the implementation of the Amended Temporary Rules was justified.

202. In addition, according to FIFA, the alternative to the Appealed Decision was a floodgate of cases about possible termination under force majeure and that players involved in such disputes would face difficulties in finding new employment.

203. The Panel even goes a step further. It finds that, generally, in a situation of war where the welfare of football players and coaches is jeopardised, as is the case in the matter at hand, there is a significant likelihood that such hypothetical cases concerning the termination of employment contracts would be decided in favour of the foreign football players and coaches. This counterfactual scenario would likely have been more prejudicial to Russian

award of 12 June 2023 (operative part of 13 January 2023)

clubs than the current Amended Temporary Rules, as the foreign football players and coaches would then have been free agents right away, whereas under the Amended Temporary Rules they can only suspend employment contracts, in principle requiring them to return after the suspension, following which the Appellants potentially still have a chance to transfer the players and/or coaches concerned.

204. The Panel finds that such counterfactual scenario has been insufficiently addressed by the Appellants to permit a thorough review of the effect of the Amended Temporary Rules, as it does not put the Panel in a position to consider all relevant aspects in its assessment of whether the Amended Temporary Rules infringe the Swiss Cartel Act.

205. Furthermore, the Panel finds that it must be borne in mind that the Amended Temporary Rules are implemented in response to the Russian invasion of Ukraine and that the rules are only valid for a 1-year period. The Russian invasion put the livelihood and welfare of Ukrainian and Russian residents in jeopardy. As addressed above, the Panel finds that FIFA established that the Amended Temporary Rules are implemented to protect such persons, by permitting them to leave Russia and addressing the ensuing legal uncertainty that would flow from potential (but likely) employment-related disputes.

206. Generally, the Panel finds that protecting the welfare of foreign football players and coaches clearly outweighs the financial disadvantages arising from the Amended Temporary Rules for Russian clubs (including the Appellants).

207. Moreover, the Amended Temporary Rules provided Russian clubs and foreign football players and coaches with the possibility of deviating from the unilateral right to suspend employment contracts. The Appellants maintain that FC Zenit was able to conclude such alternative agreement with three of its foreign players, i.e., Wendel, Malcolm and Claudinho. No evidence is presented by the Appellants demonstrating that it unsuccessfully attempted to conclude such alternative arrangements with other foreign football players and coaches.

208. Unlike argued by the Appellants, on the basis of all the above, the Panel finds that the Appealed Decision was inherent in the pursuit of FIFA’s legitimate objectives and proportionate to them.

209. Consequently, the Panel finds that the Appellants failed to establish that the Appealed Decision violated the Swiss Cartel Act.

iv. Was the Appealed Decision rendered contrary to general legal principles?

210. The Appellants maintain that FIFA violated several general legal principles and provisions with the implementation of the Amended Temporary Rules, including the protection of personality rights (Article 28 SCC), the obligation to act in good faith (Article 2(2) SCC), constitutional rights, procedural fairness, equal treatment, venire contra factum proprium and substantive public policy.

award of 12 June 2023 (operative part of 13 January 2023)

211. For the reasons set out above, the Panel finds that the implementation of the Amended Temporary Rules was generally legal, valid and proportionate. However, in the sub-sections which follow, the Panel will address several specific arguments raised by the Appellants. An overlap in legal arguments is unavoidable considering that several arguments are closely intertwined, also in the submissions of the Appellants.

212. The Panel notes that the Appellants raised a significant number of legal concepts and principles, at times however without clearly delineating their practical relevance and without substantiating their submissions as to the application of such principles to the matter at hand.

a. The right to be treated equally and the prohibition against discrimination?

213. The Appellants maintain that FIFA issued Circular Letter No. 1804 on 2 July 2022, by means of which the application of the Amended Temporary Rules was practically postponed until 1 August 2022 for Ukrainian clubs, but not for Russian clubs. The Appellants argue that such Circular letter was issued under pressure from the “Ukrainian side”.

214. First, the Panel finds that the present appeal arbitration proceedings concern the Appealed Decision, not directly FIFA Circular Letter No. 1804, that was introduced only subsequent to the Appealed Decision.

215. Second, FIFA Circular Letter No. 1804 was favourable for Ukrainian clubs in comparison with the Appealed Decision, but it did not prejudice Russian clubs (including the Appellants) as such.

216. Furthermore, according to the Appellants, FIFA Circular Letter No. 1804 was issued following pressure being exerted on FIFA from the “Ukrainian side”. Such circumstance, however, is not relevant to any evaluation as to the adoption of the Appealed Decision and/or the provisions of the Amended Temporary Rules to the extent they concern the Appellants. In addition, there is no indication on file that the Appellants requested FIFA to consider the reasonableness of postponing the practical entry into force of the Amended Temporary Rules until a later date for Russia as well, either before or after issuance of FIFA Circular Letter No. 1804.

217. Also, in the Temporary Rules, employment contracts of Ukrainian clubs were automatically suspended, but employment contracts of Russian clubs were not. Foreign football players and coaches employed by Russian clubs were only provided with a unilateral right to suspend employment contracts. Accordingly, before the implementation of the Amended Temporary Rules, and probably justifiably so, Russian clubs were treated more favourable than Ukrainian clubs.

218. FIFA was also not insensible to the complaints of the Appellants, as it answered the letter from counsel for the Appellants dated 30 June 2022 by letter dated 8 July 2022 indicating, inter alia, that several issues raised by the Appellants “would seem to fall within the competence of the relevant decision-making bodies of FIFA (the Football Tribunal), to be assessed on a case-by-case basis in the

award of 12 June 2023 (operative part of 13 January 2023)

event of a specific dispute”, thereby at least to a certain extent accommodating the Appellants’ concerns.

219. The Appellants also draw a parallel between the armed conflict between Russia and Ukraine and other armed conflicts in the world, arguing that FIFA treated clubs from Russia and Ukraine different from other clubs based in countries at war.

220. The Panel finds that there are good reasons justifying FIFA’s approach. In particular, given the invasion of Ukraine by Russian armed forces, the livelihood and physical wellbeing of human beings in Russia and Ukraine was threatened. At the time of issuance of the Appealed Decision, this threat remained limited to Ukraine and Russia.

221. The damages incurred by Russian and Ukrainian clubs are primarily caused by the Russian invasion, not by FIFA’s introduction and extension of Annex 7 as such. Rather, the Panel finds that such damages had likely been more severe but for the introduction an d extension of Annex 7. Indeed, had FIFA not introduced Annex 7, foreign football players and coaches would likely have decided to leave Russia in any event and terminate their employment contracts, invoking just cause. As indicated above, any individual case would have to be adjudicated and decided on its own merits, but the Panel finds that, given the imminent security threat, they would likely have been permitted to terminate their employment contracts, albeit probably without receiving any compensation – not because of any improper behaviour of Russian clubs, but because of the threat to their welfare.

222. Against this background, the Panel does not consider it unreasonable for FIFA to have limited the scope of Annex 7 to the clubs from the two countries directly involved in the war.

223. Although this is certainly not the only armed conflict in the world, the Panel accepts FIFA’s explanation that the disruption of the football market caused by the war was and is significant making the situation in Russia and Ukraine special. Unlike other regions affected by armed conflicts, there is a significant number of foreign football players and coaches registered in Russia and Ukraine and, furthermore, a high number of transfers is taking place each year.

224. In addition, the Panel finds that the situation in Ukraine and Russia can also be distinguished from other armed conflicts, because the conflict started quite abruptly and at a scale that indeed posed an immediate and significant security threat for human beings in Russia and Ukraine, including foreign football players and coaches. Armed conflicts in other countries may have been lingering for longer periods of time, permitting football players and coaches to weigh the advantages and disadvantages of being employed in a country at war. However, foreign football players and coaches employed in Russia and Ukraine at the time the war broke out could not reasonably have foreseen the risk of an armed conflict at the time of entering into their employment contracts.

225. To the extent the armed conflict in Russia and Ukraine is dealt with differently compared to other armed conflicts, the Panel is satisfied to accept that such different treatment is justified.

award of 12 June 2023 (operative part of 13 January 2023)

226. Consequently, the Panel finds that the Appealed Decision is not in violation of the right to be treated equally and/or the prohibition against discrimination.

b. Infringement of personality rights

227. In respect of this argument, the Appellants rely on Article 28 SCC, which provides as follows:

“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”.

228. The Appellants maintain that the consequence of the Appealed Decision is that foreign players and coaches are unconditionally allowed to leave the Appellants by unilaterally suspending their employment contracts until the end of the 2022/23 season. This creates an inequality with all other clubs in other federations, except for Ukrainian clubs. The Appealed Decision affects the economic interests of the Appellants. According to the Appellants, “[p]layers and coaches are assets of the clubs” and, given their fixed-term contracts, the Appellants are free to demand compensation for their early departure to compensate for the loss of the corresponding asset. The Appellants argue that, in this case, the tolerance threshold is exceeded. The Appellants maintain that they have not consented to the Amended Temporary Rules, as a consequence of which it remains to be examined whether FIFA can rely on an overriding public or private interest to justify the implementation thereof.

229. The Appellants maintain that, in weighing the respective interests, the importance of the respect of their legal position is considered. The Appealed Decision declares employment contracts with foreign football players and coaches non-binding. Accordingly, the Appellants maintain that they are prevented from invoking Article 17 FIFA RSTP and, because of the discretion left to foreign football players and coaches, they are confronted with unbearable legal uncertainty.

230. The Appellants submit that they also have an interest in not having their financial position impaired. The book value of players will decrease by at least one third without the Appellants benefitting from the players’ services or any compensation, besides weakening their teams.

231. FIFA submits that, unlike in the legal precedents relied upon by the Appellants, there are no personality rights of individual athletes at stake in the matter at hand. FIFA also argues that the Appellants have not established any limitation to any personality rights, that any such alleged limitation was in any event justified by the Appellants consent to be governed by FIFA and by FIFA’s overriding private and public interest to provide regulatory guidance and address the legal uncertainty caused by Russia’s war against Ukraine.

232. The Panel notes that SFT held that “personality rights include the right to health, physical integrity, honour, professional consideration, sporting activity and, in the case of professional sport, the right to

award of 12 June 2023 (operative part of 13 January 2023)

development and economic fulfilment” (SFT 4A_248/2019) and that “[w]hile fundamental rights serve primarily to defend individuals from governmental infringements, their scope can be useful in determining what is tolerable in relations between individuals” (ATF 130 III 28, consid. 4.2).

233. The Panel agrees with FIFA that the Appellants have failed to establish why the personality rights protected by Article 28 SCC, a Swiss law provision, are also applicable to legal entities with their registered seats in Russia such as the Appellants. Indeed, the personality rights protected by Article 28 SCC are in principle applicable only to natural persons based in Switzerland.

234. The Panel finds that FIFA’s argument that the Appellants have voluntarily opted to be governed by FIFA by affiliating themselves to the RFU and thereby consented to the infringement of their personality rights cannot be sustained. Affiliating yourself to a n association, directly or indirectly, does not allow the association to interfere with their members’ personality rights.

235. However, the Panel finds that, for the reasons set forth above, insofar as the Appealed Decision infringed upon certain personality rights of the Appellants, such infringement would be justified by overriding public and private interests. Indeed, the war between Russia and Ukraine and the ensuing threat to the wellbeing of foreign football players and coaches is a sufficient reason to implement the Amended Temporary Rules.

236. Finally, insofar as the Appellants maintain that they are prevented from invoking Article 17 FIFA RSTP, the Panel does not consider this to be the case. In situations where foreign football players have invoked the Amended Temporary Rules for disingenuous reasons, the Appellants may well have legal recourse against such individuals and Article 17 FIFA RSTP may well play a role, directly or indirectly, in any such proceedings.

237. Consequently, the Panel finds that there is no infringement of personality rights.

c. Infringement of guarantee of property and economic freedom

238. The Appellants maintain that the guarantee of property protects the assets of individuals against unjustified interference by the state. The guarantee of ownership protects both the existence of the claim and its value. According to the Appellants, the Appealed Decision undermines both, as it has the effect expropriating the Appellants’ claims deriving from employment contracts concluded with foreign football players and coaches.

239. The Appellants also rely on Article 27 of the Swiss Constitution, which provides as follows:

“1. Economic freedom is guaranteed.

2. Economic freedom includes in particular the freedom to choose an occupation as well as the freedom to pursue a private economic activity”.

award of 12 June 2023 (operative part of 13 January 2023)

240. According to the Appellants, this provision protects the right to choose one’s economic activity and to exercise it freely. The guarantee of economic freedom includes the right of contractual freedom and, according to the Appellants, the Appealed Decision is an inadmissible infringement of such freedom.

241. FIFA argues that constitutional rights as the one invoked by the Appellants in principle protect individuals from state intervention. It is only exceptionally accepted that constitutional rights may have an indirect effect in civil relationships, but the Appellants have not submitted why such exception should be applied in the present case.

242. As addressed above in the context of the assessment of a potential violation of Swiss Cartel Law, the Panel finds that the industry of transferring football players is peculiar. While a value corresponding to the services of players may be included in the balance sheets of football clubs, a transfer of a football player is obviously not the same as the purchase and sale of goods or commodities, since, inter alia, football players need to consent themselves to their transfer, be it on a permanent or a temporary basis. To consider foreign football players and coaches employed by the Appellants as “property”, as the Appellants do, at the very least lacks nuance.

243. In addition, as indicated above, the implementation of the Amended Temporary Rules did not exclude the Appellants from the transfer market. Indeed, despite the Amended Temporary Rules, the Appellants have acquired the services of new foreign football playe rs since the implementation of Annex 7. The transfer market and the market for the services of football players are not foreclosed to the Appellants. The Appellants were and are also free to conclude alternative arrangements with the foreign football players and coaches employed by it, so as to exclude the applicability of Annex 7 and thereby protect their “property”.

244. In any event, even without the introduction and/or extension of the Amended Temporary Rules, the transfer value of football players and/or coaches registered with Russian clubs (including the Appellants) was likely already negatively impacted by the armed conflict. Indeed, in the absence of the implementation of the Amended Temporary Rules, the Panel finds that it was likely that foreign football players and coaches would have terminated their employment contracts with Russian clubs, by invoking a just cause. From this perspective, the Amended Temporary Rules protect the Appellants rather than prejudicing them.

245. Finally, the Panel reiterates all the arguments set forth above with respect to the justification and proportionality of the measures implemented by FIFA in response to the armed conflict in Russia and Ukraine in temporarily curtailing the rights of Russian clubs.

246. Consequently, the Panel finds that the Appealed Decision does not unjustifiably or excessively restrict the Appellants’ guarantee of property and economic freedom.

award of 12 June 2023 (operative part of 13 January 2023)

d. Substantive public policy

247. The Appellants also maintain that if the Panel would recognise the validity of the employment contracts concluded between the Appellants and the foreign football players and coaches they employ, but refuses to enforce them, this would amount to a violation of substantive public police, in particular the principle of pacta sunt servanda. The Appellants submit that the concept of clausula rebus sic stantibus does not apply in the matter at hand.

248. The Panel finds that FIFA indeed set rules affecting employment relationships between Russian clubs (including the Appellants) and foreign football players and coaches. However, it enacted these rules for justified reasons.

249. The legal principle of pacta sunt servanda is not absolute. In particular, the Panel finds that the principle of contractual stability was already jeopardised because of the armed conflict between Russia and Ukraine. FIFA merely attempted to address the consequences of said conflict by seeking to strike a general and fair balance between the interests of foreign football players and coaches and Russian clubs against the background of a terrible war between Russia and Ukraine.

250. Again, the Panel finds that Annex 7 was not merely issued in favour of foreign football players and/or coaches and against Russian clubs. Rather, FIFA attempted to strike a fair and proportionate balance.

251. The Amended Temporary Rules allow for individual contractual deviations from the right of foreign football players and coaches to suspend their contracts. Once such agreement is reached, Annex 7 loses its impact on the employment relationship at stake.

252. Insofar as the Appellants rely on Article 2 SCC, the Panel finds that the Appellants might be entitled to invoke this provision in a dispute with foreign football players or coaches if they believe that they have disingenuously invoked Annex 7 to suspend their employment contracts. However, such potential abuse did not have to be specifically provided for in the Amended Temporary Rules, because it is already prohibited by Swiss law.

253. Consequently, the Panel finds that the Appealed Decision did not violate the legal principle of pacta sunt servanda or is otherwise in violation of substantive public policy.

e. Conclusion

254. Consequently, in the light of all the above, the Panel finds that FIFA did not violate any general legal principle or provision relied upon by the Appellants in implementing the Amended Temporary Rules.

B. Conclusion

255. Based on the foregoing, the majority of the Panel holds that:

award of 12 June 2023 (operative part of 13 January 2023)

i) The Bureau issued the Appealed Decision in accordance with all formal requirements set forth in the FIFA Statutes and Swiss law.

ii) The Appealed Decision was necessary and proportionate in the pursuit of a legitimate objective and is valid as such.

iii) The Appellants failed to establish that the Appealed Decision violated the Swiss Cartel Act.

iv) FIFA did not violate any general legal principle or provision relied upon by the Appellants in implementing the Amended Temporary Rules.