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Find out why Suarez’s CAS appeal may succeed

This article was first written for and published by LawInSport. Click here to view the original.
 


Whilst this article has now been overtaken by events, the
arguments set out here were in the main accepted by CAS when it reduced the
scope of Suarez’s ban by removing the “all football-related activity” element
of his FIFA sanction.


This article
proposes to look in more depth at the arguments that are likely to be
raised during Luis Suarez’s appeal hearing before the Court of
Arbitration for Sport (“CAS”) against his ban by FIFA for nine matches
and four months from all football-related activity.

High threshold

Whilst the Uruguayan FA and FC
Barcelona have sounded confident in the lead up to Suarez’s CAS hearing,
they will be aware of the high threshold that they will need to
overcome to successfully appeal against his ban.
 
Whilst CAS generally hears matters de novo (i.e. afresh),
it will only interfere with a discretionary disciplinary sanction (such
as in the present case) where the level of ban given by the governing
body, in this case FIFA, is “irrational”; in other words it is “obviously unreasonable or perverse”. Indeed, CAS has repeatedly reminded itself that it will only intervene on sanction in “exceptional circumstances”.
 
Realistically Suarez will know that he
will still face a ban come what may before CAS. Properly directed, the
questions he should therefore ask CAS to determine concern not the
principle of the ban itself but rather its (a) scope and (b) length.
 
In a nutshell, Suarez’s best two grounds of appeal to achieve either or both are:
  1. FIFA did not have the power to ban him from domestic club games;
  2. and/or,A ban from “all football-related activity” for 4 months or at all is disproportionate.

Domestic ban

This ground is a technical, legal one based on the proper construction of the FIFA Disciplinary Code (“FDC”). 

 
In terms of the applicable regulatory framework, art. 38.2 a) of the FDC provides: 
Match
suspensions in relation to an expulsion pronounced on a player outside
of a competition [separate match(es)] or not served during the
competition for which they were intended (elimination or the last match
in the competition) are carried over as follows:
a) FIFA World CupTM: carried over to the representative team’s subsequent official match.”   
The above provision is clear; sanctions given under the FDC are in relation to the “representative team”,
i.e. national team competing in the World Cup, namely Uruguay only. In
short, whilst FIFA may ban a player from international games for their
country, the general rule is that club matches cannot be included in a
ban.  
 
There is, however, an exceptional power under arts. 10, 70 and 136-137 of the FDC which allows for bans to be extended to have worldwide effect if the infringement is deemed to be “serious”.
 
Those articles list examples, such as “in particular
doping, unlawfully influencing match results, misconduct against match
officials, forgery and falsification or violation of rules on age
limits: arts. 48, 61, 63, 68a, and 69 of the FDC. The exception to the general rule that bans are only for international games is, though, “not limited” to that list of misconduct.
 
Nevertheless, and this is anticipated
to be Suarez’s argument, the examples which are given indicate that the
purpose of the exceptional power to extend the scope of FIFA bans
beyond national team games is to protect the integrity of the game in
the face of serious misconduct. Moreover, until Suarez, the exception
to the general international games-only ban had never been used by FIFA
for on-field offences. That
history will give Suarez’s legal team further room to argue that the
true intention of the FDC is to ban from international games only as a
result of on-field offences.
 
This is, therefore, where the battle
lies: does a field-of-play offence, such as serious foul play (i.e.
biting), really call into question the integrity of the game and,
therefore, fall under the ambit of arts. 10, 70 and 136-137 of the FDC?
 
There is little doubt that Suarez’s
bite arguably impacts on the integrity of the game in a very broad-sense
but is it really materially different in seriousness to, say, a serious
foul play, such a Zinedine Zidane’s head-butt in the 2006 World Cup
Final which did not result in a worldwide bans? Arguably not.

Why then has Suarez received a worldwide ban?

It is anticipated that he will argue
that he has been singled out since he is (a) a repeat offender having
received two previous domestic bans for the same offence and (b) because
the incident took place before millions of spectators at a World Cup
Finals match.
 
However, in relation to the repeat offender point, FIFA had the power to extend the length of the ban under art. 48 (1) (c) or (d) of the FDC, in terms of unsporting conduct towards and opponent or
assaulting an opponent respectively. Suarez will argue that extending
the length of the ban is the avenue that FIFA should have taken (and
indeed did take) rather than (in addition) extending its scope to a
worldwide basis. In other words, his ban from Uruguay games can be
lengthened but he cannot also be banned from domestic games for his new
team, FC Barcelona.
 
Turning to the World Cup Finals point,
Suarez will presumably argue that giving him a worldwide ban purely
because of when or where the game was played is arbitrary. Furthermore,
he would say, it would lead to inconsistent sanctions purely based on
the location and timing of the game rather than the seriousness of the
offence itself. In other words, that is an irrelevant factor to take
into account with any weight.

“All football-related activity”

This second ground gives rise to the vexed question of the proportionality of disciplinary sanctions.
 
In my view it is not especially a
restraint of trade argument in a pure sense. After all, his restraint
is only for a period of 4-months and, of course, FIFA has the power to
impose such disciplinary bans.
To argue otherwise would be to drive a coach-and-horse through
disciplinary sanctions. The key and more nuanced point is whether the
extent of the ban is objectively necessary either as punishment for the
offence and/or to protect the integrity of the game (i.e. set an
example)?
 
In reality the effect of the ban on
Suarez is likely to last longer than 4-months if he cannot train or
carry out other football-related activities, such as the giving
interviews or even fulfilling commercial sponsorship obligations. In
other words, upon completion of his ban, Suarez will not only be
unlikely to be sufficiently conditioned to play professional football
but he may also have lost commercial opportunities in the meantime.
Such a ban impacts him both as a player and a business-man.
 
FC Barcelona and the Uruguayan FA, as
parties to the appeal, will also argue that the effect of the ban goes
further than Suarez himself since it impacts his new club both and
country not only in playing terms but also in relation to commercial
obligations. Those points are likely to carry less weight than Suarez’s
personal situation since, of course, FC Barcelona knew what they were
signing themselves up to when the club purchased Suarez from Liverpool
FC for £75million even after his ban was imposed by FIFA. Further, even
though Uruguay have claimed that they will “lose” between $250,000 and
$359,000 every game that Suarez does not play that is necessarily the effect of a disciplinary sanction on an offending, superstar player.
 
The grounds of appeal identified in
this short article do, to a great extent, go hand in hand. If Suarez
succeeds in removing (or reducing) his domestic club ban then he will
obviously be able to train and play at the Nou Camp as usual. In other
words, whilst the proportionality of the “all football-related activity” ban has caught the headlines and even stimulated the World Players’ Union, FIFpro, into criticizing the extent of the ban – Suarez’s CAS appeal is likely
to be targeted primarily on the more technical, legal ground that FIFA
has implemented its own regulations in a way in which they were never
intended to be used. He would say that he simply cannot be banned from
domestic as well as international games for the on-field offence he has
committed. As such, he will also contend that, the ban is “irrational” and gives rise to “exceptional circumstances” where its worldwide scope, in particular, should be reduced or removed entirely.
 
Given the above, following CAS’
determination of his appeal, do not be surprised if Suarez runs out onto
the pitch at the Nou Camp in his new FC Barcelona shirt sooner than
expected. He may, though, be waiting a great deal longer to wear his
beloved Uruguayan shirt.

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