The Russia-Ukraine war a “case of force-majeure” in world sport

By Alexandre Mestre, Sport and Citizenship Trustee, PhD, Sports Lawyer at Abreu Advogados, , Lecturer of Sports Law, Former Secretary of State for Sport and Youth, Portugal

As everyone remembers, the Summer Olympic Games were meant to take place in 2020, but were delayed because of Covid-19. The considerations in play regarding the possible cancelation of the Games, a decision that could only be taken by the International Olympic Committee (IOC), included the fact that epidemics and pandemics were not included in the list of “cases of force majeure” in the relevant contracts. The cases of force majeure listed in the Host City Contract in Tokyo were “war”, an “embargo decreed by the international community” and “a situation officially recognised as one of belligerence”.  No one was surprised by, or criticised, the terms of the contract. All they did was regret that other eventualities had not been considered, or foreseen.

The issue is therefore: If everyone agreed, less than two years ago, that a state of war in a host country, or an embargo decreed by the international community regarding that country, could result in the cancellation of the event, why is it that the current war between two countries, which has multiple impacts on the rest of Europe and the World cannot affect the organisation of sports events. And, as the international community is adopting a wide range of sanctions, does it make sense to exclude sports sanctions, i.e. cancellation, or suspension of events in Russia, or Belarus? I don’t think so.

Another aspect is that the participation of Russian and Belarusian athletes, players, referees, or national teams in sports competitions, even if not under their national flags and in their national colours, particularly, but not only, in competitions in which Ukraine’s international representatives also take part, would, if authorised, necessarily involve strict security measures to ensure the safety of athletes, players, and other sportspersons and spectators. The use of expressions such as “preventive measures” used by the UCI, or the hope expressed by the European Handball Confederation “We hope that Peace will permit other considerations”, and therefore new decisions, is therefore understandable.

People sometimes complain that sport is no longer neutral. However, the FIFA Statutes, which require it to promote unifying values (Article 2), respect for human rights (Article 3) and friendly relations in society for humanitarian objectives (Article 5.1.b), includes express exemptions to FIFA’s political neutrality, where this is necessary in order to pursue its statutory objectives (Article 4.2). I therefore consider that this is the reason national federations are entitled to compete in competitions organised by FIFA (Article 13.1.e), although the exercise of this right is subject to other provisions of the FIFA Statutes (Article 13.2), i.e. those that list the statutory objectives of FIFA, the organisation to which they all belong. This being so, why should organisations, such as FIFA, or UEFA, which is required is “to promote football in Europe in a spirit of peace” (Article 2(b) of the UEFA Statutes), not also use the impact of football to take practical steps to condemn the war being waged by Russia? I think they should.

The matter is so serious that substance must prevail over form, in this case. In any case, I consider that the decisions taken and being taken have a firm basis in law. It should not be overlooked that the world sport legal system is based on the Olympic Charter (OC), which provides a legal basis for the adoption, by many international sports federations, of the 28 February recommendations of the IOC, [“In order to protect the integrity of global sports competitions and for the safety of all the participants, the IOC EB recommends that International Sports Federations and sports event organisers not invite or allow the participation of Russian and Belarusian athletes and officials in international competitions”].

This basis can be found in Founding Principle no. 1 in the Olympic Charter, which provides that Olympism involves “respect for universal fundamental ethical principles” and that the goal of Olympism is “to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity” (Fundamental Principle no. 2). Rule 1.1 of the OC provides that “Under the supreme authority and leadership of the International Olympic Committee, the Olympic Movement encompasses organisations, athletes and other persons who agree to be guided by the Olympic Charter.” and that “The goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practised in accordance with Olympism and its values”. Rule 2.4 of the OC states that the mission of the IOC is to “to cooperate with the competent public or private organisations and authorities in the endeavour to place sport at the service of humanity and thereby to promote peace”. Rule 2.9 of the OC provides that the role of the IOC includes the protection of the “integrity” of sport and Rule 2.18 enshrines “safe sport” as part of the IOC’s mission. It is also noted that, according to Fundamental Principle of Olympism no. 7, membership of the Olympic Movement requires compliance with the OC and recognition by the IOC, and, according to Rule 3.3, can include international sports federations and associations of international sports federations. A recommendation obviously has no binding effect, but it is clear why, FIBA, for example, explains that it is acting “in line with the IOC’s reasons”. Likewise, the International Paralympic Committee, which has had a partnership agreement with the IOC since 2000, which will remain in force until at least 2032, yesterday, justified the exclusion of Russian and Belarusian athletes from the Beijing Paralympics on the grounds that it is necessary to “preserve the integrity of the Games and the safety of all participants”. Moreover, the force of Olympic Law is such that it even binds states to a greater or lesser extent. Any remaining doubts have been dissipated by the statement made yesterday by Thomas Bach, the President of the IOC, that: “the sanctions are the consequence of the violation of the Olympic laws by the Russian government”. This is particularly relevant as the Russian Federation signed the UN Resolution entitled “Building a peaceful and better world through sport and the Olympic ideal”, in which it made a commitment to respect the Olympic Truce, which particularly involves “the promotion of peace, dialogue and reconciliation in areas of conflict during and beyond the Olympic and Paralympic Games” …

However, there are still some unresolved issues, particularly where sport organisations decide the immediate suspension, or expulsion, of Russian and Belarusian federations, and also the issue of the loss and damage caused to and invoked by the players and athletes, who, according to Rule 1.3 of the OC are “a fundamental element of the Olympic Movement’s action”. However, and as I stated at the outset, we are in the midst of a worldwide case of force majeure, which has inherent legal consequences. Not to mention the symbolism of the decisions made, which can be decisive, and from which sport cannot stand aside, on pain of betrayal of the values of Pierre de Coubertin (who was nominated for  the Nobel Peace Prize).