Company lawyer Ben Heijmeijer has his office on an industrial estate on the edge of Aalsmeer, right next to the flower auction. He is 63 years old and has been associated with Schoenmaker Legal Business Advice for many years. He likes clear rules, and believes they should be followed – no matter the situation, really.
Ben Heijmeijer became a bit famous this week. From NBC Sports in the United States to the major television network ESPN to AP News, a major US news agency. They all wrote about a decision he made at the beginning of April after a session with two fellow lawyers, via a video link.
Heijmeijer is chairman of the disputes committee of the international toboggan federation FIL. On March 16, he received an appeal against the board’s decision, two weeks earlier, to exclude Russian athletes, coaches and officials from competitions because of the invasion of Ukraine. The disputes committee decided to reverse the board decision, partly because it would be ‘discrimination’ to punish Russian athletes individually on the basis of their origin. It is the first time that a decision by a sports association to exclude Russians does not stand.
Since the Russian invasion of Ukraine, athletes from Russia and Belarus have been sidelined by the sports world. In almost no sport, athletes from those countries are still allowed to participate in competitions or tournaments. They are decisions made by international sports federations – they almost all choose the same line.
Russia disagrees. The Court of Arbitration for Sport (CAS) in Lausanne, the Supreme Court of the sports world, recently published a list of ten cases brought by Russia to avoid exclusion from various sports. The Russian federations for football, skating, biathlon, rowing, rugby and gymnastics – all demand that their athletes can ‘just’ be allowed to participate again. For example, the war in Ukraine is causing a rain of legal issues in sports. Because international sports associations can then be united, they will still have to legally defend the exclusions of athletes.
Olympic Charter
The Russians have thus won a legal victory at the toboggan arbitration committee. And while that’s not a CAS ruling, it could set a precedent. With this ruling in hand, the Russians can also bring cases in other sports and against other sports associations.
Heijmeijer understands that his statement can have significant implications, but that does not bother him. “I have to look at our statutes and the statutes state that sanctions can only be imposed in the event of a violation. By excluding Russian athletes, coaches and officials because of ‘the situation in Ukraine’, while they cannot be blamed personally, you are discriminating. Discrimination is prohibited under the FIL statutes. You can’t just override rules because you’re morally outraged.”
It is important that Heijmeijer and his committee point to the discrimination argument, because it forms a permanent part of the statutes of large sports organisations. The Olympic Charter, the rulebook for Olympic athletes, contains almost verbatim the same text about discrimination. This means that other lawyers could also allow Russian athletes to compete again with that argument in hand.
Sports lawyer Michiel van Dijk calls the ruling in the toboggan issue “very striking”. He thinks the Russians will certainly try to take advantage of it. “I can imagine the jubilation of the Russians. They have huge budgets and a big propaganda machine. If this statement becomes more widely known, many more sports organizations from Russia will bet on it. This opens the door to more.”
Sports law lawyer Frans de Weger had long felt that sports associations were sometimes very progressive in excluding Russian athletes. First of all, the regulations must be looked at. If this does not make it clear how a decision should be made in a particular situation, grounds for excluding players must be considered. “That is complicated by purely political motives,” says De Weger. “I understand that the decision of the Luge Federation is emotionally difficult, because everyone rightly condemns the war that Russia has started. But it is quite another thing to deprive individual athletes, who may also condemn the war but happen to come from Russia, by definition and under all circumstances of their right to participate. That is legally more nuanced.” He sees some parallels with the Russian doping scandal for which Russia was punished a few years ago. De Weger: “Then the CAS stated on appeal that by definition excluding athletes is not always tenable and that you should also take the interests of participants who are not at fault at all in the consideration of reaching a decision.”
Sports law lawyer Dolf Segaar expects that the Russian government will put athletes worldwide “to work” to force sports associations to review their statutes through dispute committees. “More proceedings will follow,” he says. But will the sanctions at other international sports federations disappear? Segaar has yet to see it. “Their statutes not only include a prohibition on discrimination, but integrity and safety are also central. It is a balancing of two interests.”
Sport integrity at risk
To weigh the possible precedent effect of the toboggan ruling, says sports lawyer Harro Knijff, it is important to look at the rulings of the CAS – the highest body in sports law after all. Many of the cases brought by Russian unions there are still pending. But in one case, the CAS has already issued a preliminary ruling. The agency confirmed that Russia will not be allowed to participate in the World Cup in Qatar, which starts in November. The decision of the world football association FIFA – which already excluded Russia in March because of the invasion in Ukraine – thus stood. This week the CAS . published the motivation for that decision.
The fact that Poland, Sweden and the Czech Republic, who should have played against Russia in the qualifiers, refused to complete their duels, was an important argument. If Russia had not been excluded, FIFA should have awarded the other countries a regulatory defeat. According to the CAS, this would have endangered the ‘integrity of sport’. The argument of the toboggan federation – that Russian tobogganers are discriminated against by excluding them – was not discussed in the football case, according to the CAS.
According to Knijff, this may be an indication that the CAS is on a different line than the arbitration committee of the International Toboggan Federation. “If you look at precedent, the ruling in the FIFA case about excluding Russia is important. There, the CAS upheld FIFA’s decision. I would be surprised if the CAS would judge the same as the arbitration committee of the tobogganists,” says Knijff.
The international toboggan federation FIL has since announced that it does not intend to follow the decision of its own arbitration committee. “It should also be possible in international sport to impose sanctions on sports associations and members who exhibit behavior that is contrary to international law,” the association wrote in a response. The toboggan federation plans to change the statutes in June, so that it can still be decided – according to its new own rules – to exclude Russians and Belarusians from participating in competitions. An appeal to the CAS does not appear to be in order.
Ben Heijmeijer does not feel uncomfortable about the decision he has made. Lawyers are not there for moral judgment in sports, he believes. “If we make it possible to exclude Russian athletes on the basis of a war that the country has started through no fault of their own, where do we end up? Are we going to refuse American athletes if the US starts a war? You have to think carefully about the consequences. Otherwise the entire Olympic building will collapse.”