Russia might challenge the World Cup ban in court. To defend it, FIFA might have to get political

·5 min read

FIFA’s extraordinary decision to bar Russian teams from international soccer, and most notably from the World Cup, currently lives in a four-sentence press release and nowhere else.

It was made by the Bureau of the FIFA Council, a seven-man body empowered to take emergency actions like this one, in response to Russia’s invasion of Ukraine. But its brevity left more questions than answers, and left it vulnerable to opposition. The Russian Football Union said Monday that it “reserve[s] the right to challenge the decision … in accordance with international sports law.” The RFU, which governs soccer in Russia, could appeal to the Court of Arbitration for Sport (CAS), which could overturn the suspension.

FIFA officials are aware of this possibility. The RFU had previously said that it did “not see any legal grounds for canceling” Russia’s March 24 World Cup qualifying playoff match against Poland. Multiple legal experts told Yahoo Sports that there is no obvious regulatory basis for a full-fledged ban. They noted that FIFA’s statement did not reference specific statutes or precedent.

“FIFA left itself wide open to come up with rationale later,” said Steve Bank, a UCLA professor who teaches international sports law.

FIFA, instead, seemed to respond to growing pressure from potential Russian opponents, to International Olympic Committee recommendations, and to an international community that expected it to take a stand.

That stand has been widely praised, but to defend it in court, FIFA might have to admit to what the stand really is: an exercising of political discretion that upends FIFA’s own longstanding commitment to political neutrality.

What is FIFA's strongest legal argument in banning Russia?

FIFA’s statutes fill 92 pages and do not explicitly grant it the power to punish teams for non-sporting actions that their national governments undertake. In fact, the regulations state that “FIFA remains neutral in matters of politics and religion.” Legal experts believe the RFU would cite these statutes at a CAS appeal hearing, and argue that a war for which it bears no responsibility should not be grounds for suspension.

FIFA’s Article 16 grants the FIFA Council the authority to “temporarily suspend with immediate effect a member association that seriously violates its obligations,” but the RFU would argue that it, as a soccer federation, has not violated any obligations. Besides, FIFA’s ban targeted “all Russian teams,” not the federation itself, an indication that Article 16 would not provide legal basis.

The most applicable statute, Bank and others believe, is Article 3, which, since 2016, has stated that “FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights.” FIFA, Bank said, could argue that sanctioning Russia falls in line with its commitment to promoting human rights, such as freedom and peace.

Gianni Infantino and FIFA have made the decision to ban Russia from the World Cup. Soon they may have to defend it legally. (Photo by Alexei Nikolsky\TASS via Getty Images)
Gianni Infantino and FIFA have made the decision to ban Russia from the World Cup. Soon they may have to defend it legally. (Photo by Alexei Nikolsky\TASS via Getty Images)

In a vacuum, it’s a logical argument. But as Bank points out: “I think people would probably say that's hypocritical.” They’d point to any number of human rights violations that FIFA not only failed to address but implicitly abetted. They’d point to the 2018 and 2022 men’s World Cups, held in Russia and Qatar, as events that cleanse the images of regimes that stand accused of countless rights violations.

Some have also pointed to other wars, such as the Syrian civil war or the United States’ invasion of Iraq, that were internationally condemned but never addressed by FIFA.

This whataboutism, though, seems unlikely to hold up in court, Bank said. He pointed to a 2018 CAS decision that, while not analogous, is the closest thing to precedent that exists. The Palestinian soccer federation had challenged FIFA over its refusal to act on an Israeli-Palestinian dispute. A CAS panel, in dismissing the Palestinian appeal, cited the FIFA Council’s “discretion,” essentially acknowledging that FIFA’s rules give it broad leeway to pick and choose which issues to tackle and which to ignore.

Why FIFA's past hypocrisy may not matter

It is clear that, over the past week, FIFA has exercised this discretion. FIFA president Gianni Infantino described being “shocked” last Thursday when he awoke to learn that an invasion was underway. He and the FIFA Council, a representative body comprising officials from all six soccer confederations, made the determination that this was a war to be “very worried about,” and a war worth condemning, whereas others hadn’t been. They chose to punish Russia and side with Ukraine in a dispute that Western democracies largely believe is a war without legitimate cause, but that Russian president Vladimir Putin has justified as self-defense against NATO expansion, and with baseless claims of “genocide” in Ukraine.

The RFU, legal experts say, could argue that these are political decisions, induced by political pressure, that FIFA’s statutes don’t permit.

So FIFA, in essence, would have to argue that it has broad power to exercise political discretion and take impactful action — an argument long since made by just about everybody, except FIFA.

Some sports officials have broken character to make it this week. World Athletics president Sebastian Coe, in announcing a ban on Russian and Belarusian track and field athletes, acknowledged that sanctions “appear to be the only peaceful way to disrupt and disable Russia’s current intentions and restore peace.” He said that “sport has to step up and join these efforts,” and that, although he’d usually rail against the politicization of sport, “this is different.”

FIFA officials have not yet made this argument publicly, but Bank believes they could. CAS would not rule on morality or hypocrisy, only on whether FIFA has followed applicable laws and its own rules. Those rules seem to allow officials to make moral judgements. Logical arguments, as opposed to legalistic ones, could prevail.

FIFA could reason that its member associations — including the ones that have refused to play Russia — forced its hand; and that it is merely following IOC recommendations.

It could argue that this isn’t about one specific article or statute; it’s about a war that has already killed hundreds and contradicts the ideals that FIFA claims to represent.