During major sporting tournaments, it is not uncommon for a country to lodge a legal protest against decisions made by the referee or the organisers: the stakes are high, so every effort is made on the legal front to maximise the chances of sporting success. If that fails, we are increasingly seeing attempts to seek redress in the form of a legal protest. This World Cup is no exception: today, Egypt lodged an official protest against the referee’s decisions, and earlier even President Trump intervened regarding Folarin Balogun’s red card.
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Of course, Balogun’s specific case is significant, but we would like to look at this from a broader perspective. By now, the dust has settled somewhat on this case, the Red Devils have progressed to the quarter-finals, and the football world seems to be getting back to business as usual. From a sporting point of view, that makes sense, but from a legal perspective, it is far from it. This is particularly because we believe that, in terms of procedure, things went seriously wrong here, leading to successful political interference and the absence of a ‘fair trial’. And as far as we are concerned, the latter must also be a fundamental principle in the world of sport. Only then can we prevent a single individual from exerting influence over internal procedures within sport.
The American striker Folarin Balogun was shown a red card in the match between the US and Bosnia for a foul on the ankle of his opponent Muharemovic. Under Article 10.5 of the FIFA World Cup Regulations and Article 66.4 of the Disciplinary Code, this means that Balogun is automatically suspended for the next match. However, one day before the round of 16 match against Belgium, FIFA announced that the suspension had been converted into a suspended suspension and a fine of 40,000 dollars. It later emerged that President Trump had played a role in this by phoning FIFA President Infantino. He is said to have asked for a ‘reconsideration’ of the case.
Article 10.5 of the FIFA World Cup Regulations makes no exception: a red card always results in a one match suspension. In the case of serious offences or other aggravating circumstances, that penalty may be extended. The FIFA Disciplinary Code is also declared applicable in those same Regulations. In short, Article 27 of those regulations states that the competent legal authority may convert a sanction into a suspended sanction. In this case, the Disciplinary Committee based its decision on Article 27, as stated in FIFA’s press release. A reasoned decision has not been published, and as far as we are concerned, this is the first omission. It was on the basis of this article that Ronaldo was also able to take part in the World Cup following his red card in the friendly against Ireland.
The question therefore remains as to exactly how this procedure came about. The Disciplinary Committee may initiate proceedings following a formal protest, but also at the request of the FIFA Council or even on its own initiative. However, its authority to pass judgement is limited. Under Article 56 of the Disciplinary Code, the Disciplinary Committee may sanction all breaches of FIFA regulations, unless another body has been granted that authority. More specifically, as paragraph 2 of that article explains, the Disciplinary Committee is responsible for four types of cases: obvious errors by referees, serious infringements that escaped the referees’ notice, imposing additional sanctions, and extending the automatic suspension following a red card.
Although the regulations do not explicitly rule out the possibility that the automatic suspension might be affected even where no obvious error has been made by the referee, converting it into a conditional suspension seems difficult to reconcile with the concept of an automatic suspension. The articles on the basis of which a player is automatically suspended only provide for the possibility of increasing the penalty, not of mitigating it, whereas that is precisely what has happened here.
FIFA appears to have found a workaround: in another press release, the organisation mentions yet another offence that Balogun is alleged to have committed. He is said to have entered the pitch to celebrate the victory with his team, in breach of Article 66.1 of the Disciplinary Code. FIFA appears to be using this as a pretext to deal with the combination of offences with a single penalty. However, it remains remarkable that didn’t mean a more severe penalty was imposed. It is difficult to imagine that there was no political pressure behind this.
The USA’s next opponent, Belgium, disagreed with this decision. The Belgian Football Association asked FIFA for clarification and a copy of the decision. The world football governing body refused to provide that clarification, which, in our view, is the second incorrect course of action. Instead, it treated the requests from Belgium as an official appeal. The Belgian Football Association was given a few more hours to supplement its appeal, but had to do so without having seen the Disciplinary Committee’s decision. There was therefore no genuine opportunity for both sides to be heard. FIFA’s Appeal Committee quickly ruled that this appeal was inadmissible, as Belgium was not a party to the proceedings. Despite requests to that effect, Belgium has still not received any grounds for that decision either.
FIFA emphasises in its statements that the members of the disciplinary committees are independent. This may be the case on paper, but in practice they are heavily influenced by the FIFA Executive Committee. Every four years, the Executive Committee can decide whether the members of the legal committees may remain in office or not. It is widely known that Infantino exerts influence over the members of these committees. So however often FIFA repeats that the committees are independent, the safeguards to ensure this are lacking.
In sports jurisprudence, the referee’s decisions are, in principle, not subject to review. This is also known as the ‘Field of Play’ principle. As early as the 1980s, this principle was established in the case law of the Swiss Federal Supreme Court and the Court of Arbitration for Sport. If every decision made by the referee could be referred to a legal body, this would lead to undesirable interruptions to matches; moreover, the referee is by far the best person to assess the offence on the pitch. Only in exceptional cases, such as bribery, may refereeing decisions be referred to a legal body.
The referee’s decision must, however, be distinguished from the consequences that follow after the match. After all, that decision relates solely to the consequences and no longer affects the result of the match. FIFA also emphasises this in its statements. In general, therefore, the Disciplinary Committee is able to rule on the suspension resulting from the red card. There is therefore no question of the red card being rescinded, as is sometimes reported.
Trump’s phone call is, moreover, a prime example of political interference in sport. Although sports federations always try to keep politics and sport separate, this was not the case here. Furthermore, political interference in the affairs of FIFA members is prohibited under the FIFA Statutes. The Nepalese national association was suspended just a few weeks ago for breaching that article. The problem is that this power lies with the FIFA Executive Committee, after which a three-quarters majority of FIFA members must ultimately approve the suspension. This makes it virtually unthinkable in practice that the US association will actually be suspended.
Although the regulations can therefore be interpreted to mean that the Disciplinary Committee can convert Balogun’s penalty into a suspended sanction, this case highlights the vulnerability of the FIFA system. FIFA bears the hallmarks of a footballing government. Whilst democratic governments generally have a strict separation of powers, in football this separation exists only on paper. FIFA is the legislative, judicial and executive power all in one, but the various bodies do not operate independently of one another and are susceptible to conflicts of interest. Combined with the trend whereby decisions in sport are increasingly being challenged in court (see also: the decision to award the Africa Cup of Nations to Morocco), this creates a dangerous cocktail in which political interference and conflicting interests lurk. A minimum prerequisite for cases of this kind should, at the very least, be to ensure openness, transparency and the right to be heard by various independent bodies. This did not happen in this case, and that is a very dangerous and painful realisation.
Martin Bax
Attorney-at-law
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