The Court of Arbitration for Sport ("CAS") recently had to address a thorny political question. In the case of Islamic Republic of Iran Judo Federation v. International Judo Federation (CAS 2019/A/6500; CAS 2019/A/6580), the CAS was asked to review a disciplinary measure suspending the International Judo Federation ("IJF") from participation in international events "until the Iran Judo Federation gives strong guarantees and proves that they will respect the IJF Statutes and accept that their athletes fight against Israeli athletes." The Iranian Judo Federation ("IRIJF") appealed this Suspension Decision on a number of grounds, claiming in particular that it had always acted in compliance with the statutes of the International Judo Federation. In fact, in a joint letter with the President of the National Olympic Committee of Iran, the President of the Iran Judo Federation had jointly written to the IJF "to confirm that the I.R. Iran NOC shall fully respect the Olympic Charter and its non-discrimination principle, and the I.R. Iran Judo Federation shall fully comply with the Olympic Charter and the IJF Statutes."1 The IJF nevertheless imposed the abovementioned suspension on the Iranian Federation.
The CAS Panel heard a large number of witnesses and undertook a lengthy review of the facts. It concluded that it was convinced that various high level sports and political authorities such as the president of the Iranian Judo Federation, the president of the Iranian National Olympic Committee, and the First Deputy Minister of Sports and Youth had at various points in time instructed Mr Saied Mollaei, an Iranian judoka, referred to by the CAS panel as the "Athlete" to deliberately lose certain fights in order to avoid having to confront an Israeli competitor at international judo events.2
The CAS Panel noted that the overall credibility of the Athlete was strongly supported by the facts that the Athlete had requested to change his Iranian sporting nationality, that he left his family in Iran to live in Germany under permanent security protection and in a place that remains hidden, that he had never returned to Iran since leaving for Japan in August 2019, and that his account of facts was accepted by the German immigration authorities. It also referred to statistics which it considered supported the fact that the Iranian Judo Federation avoided confronting Israeli competitors.3
In terms of attribution of the instructions to the Iranian Judo Federation, the CAS Panel noted that "the evidence shows that such instructions were initially given to the Appellant by his coach, Mr Zareian, on behalf of Mr Miresmaeili, President of the IRIJF" and that in the Panel's view, "the acts of the President of the IRIJF must in principle be attributed to the IRIJF itself considering that the President of an organisation embodies such organisation." According to the CAS Panel, this shows "the opposite of the principle of ‘political neutrality' solemnly reaffirmed before the Panel by the President of the IRIJF at the end of the hearing in the present proceedings."4
The CAS Panel concluded that it was established that the Iranian Judo Federation instructed the Athlete to deliberately lose his contests at the 2019 Tokyo Judo World Championships in order to avoid competing against an Israeli athlete at a later stage, and that this breached the principles of political neutrality and non-discrimination as provided under the IJF Statutes and the Olympic Charter.5
The CAS Panel recalled that "as a member of the Olympic Movement, the IJF commits to promote the ideals and objectives of the IOC and to consider the adherence to such fundamental principles – in particular the principle of political neutrality and the principle of non-discrimination – as essential".6 The CAS Panel considered that the Iranian Judo Federation "is undoubtedly bound by the principle of political neutrality as well as the principle of non-discrimination as provided for under the Fundamental Principles of Olympism in the Olympic Charter and the IJF Statutes" but violated these principles in this case. According to the CAS panel, the principle of political neutrality "requires that no political interference whatsoever [be] exercised on the activities of a sporting organization" and that "athletes must be free to exercise their sport without any political interference". It considered that "the instructions given by the IRIJF to the Athlete not to compete against an Israeli athlete undoubtedly represent a political influence in the sporting activities, and therefore a clear violation of the principle of political neutrality."7
It also found that "by instructing the Athlete to deliberately lose a contest in order to avoid competing against an Israeli athlete, the Appellant caused the Israeli athlete to be treated differently from other athletes solely because of his nationality or religion" and that this constituted a prohibited discrimination based on nationality or religion.8
The CAS Panel considered that this was a "serious breach" of the rules given that "the present case does not concern a unique event" and that the combined involvement of the IRI NOC, the Ministry of Sports of the IRI as well as the IRIJF revealed "an institutionalised scheme" which violated principles that are of "paramount importance as they form part of the Fundamental Principles of Olympism, as provided for in the Olympic Charter".9
However, it then considered that Article 12 of the IJF Disciplinary Code provides for an exhaustive list of applicable sanctions which did not include the specific open-ended suspension imposed on the Iranian Judo Federation. According to the CAS Panel, "the principle of nulla poena sine lege prevents the IJF Disciplinary Committee to impose a sanction that is not provided for in the list of possible sanctions or to impose to a specified sanction different modalities than those expressly provided for in the text."10 This is not changed by the fact that Article 28.1 of the IJF Statutes mentions that in case of serious breach or gross negligence "[a] National Federation may be suspended or expelled" without any further clarification, since, in the view of the CAS Panel, the IJF Statutes themselves command the IJF Disciplinary Commission to rely exclusively on the IJF Disciplinary Code for the determination of the appropriate sanction in a specific case" and thus to limit itself to the listed sanctions. 11 This requires the IJF Disciplinary Commission to limit any suspension to "a competition or duties". It thus found that "the Suspension Decision lacks the necessary legal basis"12 and annulled that decision. The CAS Panel referred the matter back to the Disciplinary Commission of the International Judo Federation "for its eventual further decisions."
This is an interesting case that reveals the relationship between politics and sports. It highlights the importance attached to "foundational principles" such as political neutrality and non-discrimination. These could be important issues for discussion in the upcoming Olympic Games if athletes want to take a knee or express views of a political nature in different ways to respond to a number of situations of conflict or human rights abuses around the world. The CAS Panel decision is also a warning to those sporting bodies that allow politicians or other sports federations to intervene in their activity or to interfere with the exercise of the sport by their athletes. Even if the political interference comes from politicians, the relevant sports federation can be held accountable and may be sanctioned as a result. Finally, it is noteworthy that the CAS Panel found a way of reaching some sort of compromise decision in this case by relying on a general principle such as "no penalty without a legal basis" to conclude that the suspension did not have a legal basis even though it was very closely related to the envisaged penalties, in particular for serious breaches.
Geneva-based White & Case partner Jasper Wauters has been appointed as an arbitrator to the Court of Arbitration for Sport (CAS). He joins Paris-based White & Case partner Andrew McDougall QC, who is also on the CAS list of arbitrators.
1 CAS Panel Award, Islamic Republic of Iran Judo Federation v. International Judo Federation (CAS 2019/A/6500; CAS 2019/A/6580), para.13 (hereinafter “CAS Award”).
2 CAS Award, paras 86-87.
3 CAS Award, para. 92.
4 CAS Award, para. 93.
5 CAS Award, para. 107.
6 CAS Award, para. 103.
7 CAS Award, para. 105.
8 CAS Award, para. 106.
9 CAS Award, para. 121.
10 CAS Award, para. 125.
11 CAS Award, para. 126.
12 CAS Award, para. 128.
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