The Court of Arbitration for Sport (CAS) rejected the Football Union of Russia’s request to stay
Preamble
In a media release from the Court of Arbitration for Sport 18 March 2022, CAS confirmed that the President of CAS’ Appeals Arbitration Division had rejected the request filed by the Football Union of Russia (FUR) to stay, for the duration of the CAS proceedings, the execution of the FIFA Council’s decision to:
“1) to suspend all Russian teams and clubs from participation in its competitions until further notice, and
2) to give a “bye” to the team of Poland to the final of “Path B” of the European play-offs for the 2022 FIFA World Cup, due to take place on 29 March 2022,”
The consequence of the decision from CAS is that FIFA’s decision remains in force and all Russian teams and clubs continue to be suspended from participation in FIFA competitions.
It is important to stress that the CAS’ decision is limited to FUR’s request to stay, awaiting the outcome of the proceedings, and that FUR still has a chance of succeeding on the merits.
General requirements for succeeding with an application for provisional or conservatory measures
According to Federal Act on Private International Law (PILA) Article 183, an international arbitral tribunal in Switzerland is empowered to order provisional or conservatory measures at the request of one party, unless the parties have agreed otherwise.
In the case between FUR and FIFA, FUR has applied for the following Provisional and Conservatory measure: “to stay, for the duration of the CAS proceedings, the execution of the FIFA Council’s decision to suspend all Russian teams and clubs from participation in its competitions until further notice”. In practice, the CAS proceedings will end with the award being notified to the parties.
Pursuant Article R37 of the CAS Code, the Panel or, as in this case, the President of the Appeals Arbitration Division (until the case file has been transferred to the Panel) is competent to consider an application for provisional or conservatory measures.
As a general rule, in accordance with CAS jurisprudence and when deciding whether to grant a request for provisional or conservatory measures, CAS shall consider if the requested measure leads to protection of the applicant’s interest and that the interests of the applicant outweigh those of the opposite party and third parties. In this process the applicant must demonstrate that the harm or inconvenience it would suffer from the refusal of the requested provisional or conservatory measures would be comparatively greater than the harm or inconvenience other parties would suffer from the granting of the provisional or conservatory measures.
CAS has considered applications for provisional or conservatory measures on numerous occasions. In accordance with CAS jurisprudence, in particular CAS 2007/A/1370-1376 which has been referred to in many subsequent cases, an application for provisional or conservatory measures should, in general, be considered based on the following factors:
(a) whether the provisional or conservatory measures are necessary to protect the Applicants from irreparable harm (“irreparable harm” test): the Applicant must demonstrate that the requested provisional or conservatory measures are necessary to protect its position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage;
(b) whether the Applicant has reasonable chances to succeed on the merits (“likelihood of success” test): the Applicant must demonstrate that its position is not obviously groundless and that it has reasonable chances eventually to win the case;
(c) whether the interests of the Applicant outweigh those of the opposite party and third parties (“balance of convenience” test): the Applicant must demonstrate that the harm or inconvenience it would suffer from the refusal of the requested provisional or conservatory measures would be comparatively greater than the harm or inconvenience other parties would suffer from the granting of the provisional or conservatory measures.
The three requirements for the grant of provisional or conservatory measures (i.e. irreparable harm, the likelihood of success on the merits of the appeal and balance of interests) are cumulative.
Consideration of FUR’s request for stay
As CAS has rejected FUR’s request for stay, it must be assumed that this decision by the President of the Appeals Arbitration Division is based on a conclusion that at least one of the three requirements for a stay are not met.
With regards to the “likelihood of success” test it is interesting to note that the FIFA decision, at least the part that is revealed in the media statement, to little extent seems to be based on legal considerations, i.e. provisions in the FIFA Statutes or regulations. Appeals over decisions that only to a small extent are based on legal considerations are very unusual, and the panel in this case would have very little case law to lean on. As such, it would be difficult for the President of the Appeals Arbitration Division to base a rejection of FUR’s request for a stay on a view that FUR is unlikely to succeed.
With regards to the “irreparable harm” test, the factual matters that a conclusion should be based on are similar to those applicable to the “balance of convenience” test.
Although the FIFA Decision suspends all Russian teams from FIFA’s competitions, the far most important consequence of the decision is that Russia’s representative team is eliminated from the FIFA World Cup Qatar 2022. Russia, who finished as runners-up in their World Cup qualifying group, was scheduled to play Poland 24 March. If they had won that match, they would play the winner of the match between Sweden and the Czech Republic five days later, 29 March. A consequence of the FIFA decision is that Poland is given a bye in the first match, and will play the winner of the match between Sweden and the Czech Republic.
If FUR’s appeal will succeed on the merits, i.e. that FIFA’s decision to suspend Russian teams and clubs from participation in FIFA competitions is set aside, a consequence could be that Russia is qualified to participate in the playoffs for FIFA World Cup Qatar 2022.
If FUR is successful on the merits and the parties are notified of the CAS Award after the playoff matches have been played, that could lead to a need for replaying the playoff matches, which for all parties would cause challenges with regards to completing the playoffs within the international windows, taking into consideration international club and national team competitions, in time for the scheduled start of FIFA World Cup Qatar 2022 21 November.
With regards to the “irreparable harm” test, it would probably be possible to complete the playoffs before 21 November, of course depending on when the award is notified to the parties. If that is the case, the requirements for the request for stay based on irreparable harm are not met.
With regards to the “balance of convenience” test, the President of the Appeals Arbitration Division needs to determine whether FUR would suffer harm or inconvenience from the refusal of the requested provisional and conservatory measures that would be comparatively greater than the harm or inconvenience FIFA and other parties would suffer from the granting of the provisional and conservatory measures. In this regard, it will probably be safe to assume that the harm or inconvenience suffered by FUR, which in practice would be related to their participation in the replay(s), will be rather similar to the harm or inconvenience suffered by the Swedish and Polish football associations. As such, the requirements for the request for stay based on balance of convenience are not met.
Conclusion
As the President of the Appeals Arbitration Division has concluded that FUR’s request is rejected, it is likely that he has found either that the measures are not necessary to protect FUR from irreparable harm, and/or that FUR’s interests do not outweigh those of FIFA and third parties.
The CAS arbitration proceedings continue. A Panel of arbitrators will be constituted and a hearing will be scheduled.
