Previously, the Court of Arbitration for Sport (CAS) released its decisions on the Football Union of Russia’s (FUR) requests to stay the execution of UEFA and FIFA’s suspensions of all Russian teams and clubs from the respective leagues’ competitions. Now, the CAS has released its full order, which provides the reasoning behind the CAS’ decision.
Citing R37 of the Code of Sports-related Arbitration, Ms. Corinne Schmidhauser, President of the CAS Appeals Arbitration Division, identified the following factors when deciding whether a stay of execution should be granted:
Whether the stay requested is necessary to protect the applicant from irreparable harm;
Whether the applicant has reasonable chances to succeed on the merits; and
Whether the interests of the applicant outweigh those of the opposite parties and of third parties.
Irreparable Harm
In a lengthy discussion of the arguments, the Division President found that the Football Union of Russia would suffer irreparable harm if the stay of execution was not granted. The Division President turned to previous CAS opinions in finding that a suspension “can cause irreparable harm . . . if the athlete is unable to compete in qualifying events necessary to compete in [a] major event[].”
Reasoning that the World Cup and Women’s World Cup are the biggest football tournaments that take place only every four years, the Division President found that the respective tournaments constitute major events. Thus, the FUR would suffer irreparable harm. However, the Division President left it open because the Division President gave more weight to the balance of interests factor.
Likelihood of Success
The Division President punted on this factor refusing to take a position on the likelihood of success. “the [Football Union of Russia’s] likelihood of success on the merits cannot be definitely discounted.” Therefore, the decision turned on the balance of interests.
Balance of Interests
The Division President found that the FUR’s teams have an interest in participating in competitions. However, FIFA has a legitimate interest in maintaining and ensuring smooth competitions and the integrity of its competitions.
If the FUR was allowed to continue in the competition, opponents would forfeit the game, which would damage the integrity of FIFA competitions. Similar damage would occur if the FUR were allowed to play, then be removed later in the competition.
The Division President also noted that additional security measures would be necessary for a safe competition.
With those interests in mind, the Division President found that the balance of interests weighed “decisively” in favor of FIFA, UEFA, and the other Respondents. Therefore, the Division President denied the FUR’s requests.
Takeaway
For future organizations lodging requests for provisional measures to the CAS, note that even when irreparable harm is apparent, safety and integrity weigh heavily in the decision on whether to grant a stay of execution. Therefore, when an organizations actions lead to multiple opponents refusing to play, it is unlikely that a stay of execution will be granted.