In one of my previous blogs, I wrote about FIFA’s threat to penalize wearers of the One-Love band with a yellow card. In my view, this sanction is not possible under the current FIFA-regulations. As a response to FIFA’s announcement various national football associations intended to file a protest against this announcement at the Court of Arbitration for Sport (CAS), in emergency proceedings. However, they later refrained from doing so. And that could well be because there is a good chance that the CAS would never hear the merits of the case.
After all, the CAS has no jurisdiction to rule on a yellow card or short suspension. Moreover, one might wonder whether a general communication to the various football associations qualifies as an appealable decision.
First briefly: an emergency procedure at the CAS
Proceedings at the CAS in 48 hours, as announced by the German Football Association. It can be done. Like with the Olympics, the CAS has also appointed a so-called Ad-Hoc Committee for the 2022 Football World Cup. This committee can handle urgent matters relating to the World Cup. What exactly FIFA and the CAS have in mind for this World Cup is somewhat unclear to me. For example, only disputes that arise during the World Cup can be brought before this CAS committee. Also the FIFA-regulations exclude from jurisdiction various urgent matters, such as yellow cards and short suspensions; and FIFA’s procedures must be followed before a case can be brought to CAS. That doesn’t leave much.
CAS jurisdiction in case of yellow card or "short" suspension
The CAS Ad-Hoc Committee shall deal with cases that fall within the jurisdiction of the CAS. The jurisdiction is defined in inter alia the FIFA Statutes.
The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of any disputes covered by Article 57 of the FIFA Statutes, insofar as they arise during - and in connection with - the final round of the 2022 FIFA World Cup Qatar ("FIFA World Cup"), i.e. between 20 November and 18 December 2022, both dates included.
The FIFA Statutes explicitly exclude a number of matters from CAS jurisdiction:
- Violations of the rules of the game, such as wearing equipment with a political statement (art. 57 paragraph 3 sub a FIFA Statutes);
- Non-doping related suspensions up to 4 matches or 3 months (Art. 57 paragraph 3 sub b FIFA Statutes).
Last week I wrote about FIFA’s desire to penalize the wearer of the One-Love band with a yellow card. In that blog, I concluded that based on the FIFA Equipment Regulations, this would not be possible. Should a referee nevertheless give a yellow card for wearing a One-Love band, based on the FIFA Statutes this cannot be challenged at the CAS. After all, the yellow card is given for violating the Rules of the Game. The CAS has no jurisdiction to rule on the correctness of that decision and will not hear the merits of the case.
Moreover Article 9 of the FIFA Disciplinary Code stipulates that a referee’s decision on the field can also not be reviewed by the FIFA judicial bodies. The decision stands.
Based on the FIFA Equipment Regulations and the FIFA Disciplinary Code, FIFA could, however, impose a suspension (see my previous blog). As long as it is less than 4 matches, the CAS will also not hear the merits of a protest. Again, it lacks jurisdiction.
Next to that, a party cannot simply go to the CAS to protest a decision. First, it will have to go through the remedies provided by the FIFA-regulations. After all, the CAS only has jurisdiction with regard to final decisions of FIFA (art. 57 paragraph 1 FIFA Statutes). This means that a decision should first by challenged a the Disciplinary Committee. A decision of this committee at its turn should (normally) be appealed at the Appeals Committee (art. 53 paragraph 2 FIFA Statutes), before the CAS would have jurisdiction. After all, the CAS can only adjudicate final decisions of FIFA.
Finally: No decision to challenge at the CAS
To bring a case to CAS, there must be a dispute. That will have to be based on a decision. What is clear is that no yellow card or suspension has yet been imposed. So there is no such decision (to the extent such a decision is not excluded from jurisdiction).
The general communication to the various Football Associations are not likely to qualify as such an appealable decision. FIFA has communicated that referees will issue yellow cards when wearing the One-Love band. As far as is known, this is not a decision directed against a specific Football Association or specific athlete, but a general communication.
In order to constitute an appealable decision, it must be addressed to an individual party (see, for example, CAS 2018/A/5871). This does not appear to be the case with a general communication. Also for this reason, going to CAS, would probably not have led to an assessment on the merits, regarding the question whether wearing a One-Love band is or should be sanctioned under FIFA regulations.
