With Joseph Blatter and Michel Platini both recently banned by the adjudication chamber of the Ethics Committee of world football’s governing body FIFA from all involvement in the sport for eight years, coupled with fines of CHF 50,000 and CHF 80,000 respectively, albeit subject to appeal, numerous questions arise for sports administrators.
Here, Bruce Caldow, who leads the sports law practice at Harper Macleod, looks at 5 key issues sports administrators need to consider when excluding people from a sport.
1. The length of suspensions
Is it lawful to ban someone for such a long period of time? In simple terms, it can be. Even bans that apply “sine die” (for the rest of the person’s life) can be lawful. However typically, it is important to have a review, or the ability to review, when a lengthy ban is imposed. A recent example of a lifetime ban that was confirmed by the Court of Arbitration for Sport (CAS) was in the matter of Daniel Koellerer in 2012, banned from tennis for life in respect of match-fixing.
2. The breadth of the suspensions
This has drawn attention no less from the recipients, with some questioning whether exclusion from all football, being “administration, sports or any other involvement in football”, would go as far so as to restrict each person from attending matches as paying spectators. Recent media speculation considered whether Mr Platini was permitted, or not, to attend a football awards ceremony and conference in the Middle East. Such bans have been applied in other cases, such as the famous Bloodgate case in rugby, in which Dean Richards was excluded from all involvement in rugby for three years. To that extent and taking into account that all association football is played in one way or another under the auspices of FIFA, with matches played in environments in which access must be gained not by right but through ticketing, it is easy to see that such a suspension could theoretically operate and practically be enforced in football.
3. Duality of sanction
There has been duality of sanction, with both a fine and suspension imposed. It is typical and common for sports to have disciplinary and regulatory regimes that empower the imposition of more than one sanction. The key, however, is to ensure that the sports body has the power under its rules to issue more than one sanction. Whether Mr Blatter and Mr Platini succeed in the cancellation of their fine as Koellerer achieved before the CAS is one of many possible outcomes.
4. Imposing sanction before any appeal
With the bans being imposed with immediate effect and therefore taking effect prior to any appeal being heard, there is the question of whether sports should allow for the right of appeal to be exercised prior to the imposition of the sanction imposed at first instance. It is important to note that both Mr Blatter and Mr Platini deny the allegations against them and have declared their intention to appeal, which is expected to include through internal FIFA processes (through FIFA’s own appeal committee), the CAS and possibly the Swiss courts (who have a limited supervisory-type jurisdiction over the CAS). There is, however, no rule of law that says that a sanction cannot be imposed whilst an appeal is being processed. Given the many appeal stages available in sports, it would be impracticable to do otherwise.
5. Criminal investigations
An ongoing criminal investigation has not stopped FIFA from acting. Arguments concerning human rights will only very rarely work to stop sports discipline bodies from proceeding against persons or sports bodies; albeit care needs to be taken to focus the proceedings on the alleged breach of sports rules and to not make any statement, finding or comment that may amount to contempt of court.
Whatever happens, the appeals of Mr Blatter and Mr Platini will doubtless continue to attract our attention over the coming months.