Football is a rule-based game whose laws have evolved to ensure fair play both on and off the pitch.
Fairness is an integral part of any sport: We do not enjoy sports without fair play, we are not entertained by rules of the game that are unjust and we do not patronize a contest that propagates inequity.
No matter how we look at the disqualification of Saudi Arabia’s Al-Hilal club from the AFC Championship, whether as a fan or as a spectator of the sport, the treatment meted out to the reigning champions reeks of unfairness.
Al-Hilal’s exit is neither in line with the fairness principles that have defined the sport nor the reason given that it would have “a huge negative impact on the current match schedule” in line with the spirit of the game.
Violation of laws of the game
As a rule-based game, there are many stakeholders who have a say on how the rules are created, enforced and contested.
The common theme that governs the manner in which these rules are exercised is fairness.
The IFAB (International Football Association Board), the worldwide body entrusted with sole responsibility for developing and preserving the laws of the game of football, has set high standards for introducing changes to the laws of the game.
Every proposed change must focus on fairness. Governing bodies such as FIFA and AFC have as their objectives the promotion of integrity, ethics and fair play.
AFC’s decision to disqualify Al-Hilal club from the AFC Championship flouts the foundational principles on which the law of the game has been established. A game of football can be played by two teams with 11 playing players.
Law 3 of the IFAB sets the minimum number needed to start a game. It states that a match may not start or continue if either team has fewer than seven players.
But AFC’s decision requiring 13 players, two more than the playing 11, exceeds the IFAB’s mandate.
Coronavirus: A force majeure event
It is likely that Al-Hilal’s team members landed in Qatar in a condition where they were fit to play.
The team members who were infected by the coronavirus caught the infection in Qatar.
Player safety in the light of the coronavirus outbreak is a matter of collective concern that the AFC, as the regulator and the local organizer, should take responsibility for.
A team’s inability to present 13 players due to infection contracted from the playing venue is a matter of serious concern, which in itself should have prompted the AFC competitions committee to declare the coronavirus as a force majeure event under the AFC Champions League competition regulations 2020.
Force majeure is defined under the regulations as an event affecting the performance or any provision of the regulations arising from events beyond the control of a party and includes epidemics such as the coronavirus.
Under Article 71 of the regulations, the AFC competitions committee has the power to declare the coronavirus as a force majeure event. Yet, they chose preserving the match schedule over player safety and refused to postpone the event.
AFC’s decision to call off Al-Hilal Club’s game against Ahli Dubai on the ground that the Saudi club could not secure a squad comprising 13 players came about despite the club’s repeated requests to postpone the match.
Due to the coronavirus infections, the Al-Hilal squad fell short of the required 13 as they had only 8 players and 3 goalkeepers to play the game.
AFC canceled the game and disregarded the results of all the previous games of the Saudi club, disqualifying it from the competition.
AFC had all the power to call off or postpone the championship citing the coronavirus as a force majeure event. Its failure to do so is baffling, especially in light of the postponement of other major sporting events, including AFC’s own decision to postpone the East Zone Championship.
Sporting events such as the AFC Championship can only be conducted in an atmosphere of fairness where the participating teams are not discriminated against and their interests are not compromised.
For the first time in the history of modern games, the Olympics, which was due to be held this year in Tokyo, has been postponed due to the pandemic.
The organizing committees took this decision to safeguard the health of the athletes. Olympics, the epitome of all sporting events, which has been conducted uninterrupted during peacetime since 1896, had to be stopped due to the pandemic.
AFC’s own action in postponing the AFC Championship League East Zone matches, which were originally scheduled to start in October, flies in the face of its insensitive decision disregarding the requests of Al-Hilal club.
Not only does this event reflect poorly on the discriminatory application of AFC regulations in the light of a global pandemic that has taken a toll of more than a million deaths, it has also exposed the manner in which player safety has been handled contradictorily by AFC in a different zone for contact sport such as football.
Though Al-Hilal’s request to postpone the matches fell on deaf ears, all is not lost.
The AFC regulations provide for a dispute settlement mechanism that Al-Hilal can resort to expeditiously to save its interests and the spirit of fair play, which is at stake here.
The dispute settlement mechanism under the AFC regulations points toward sole recourse at the Court of Arbitration for Sport (CAS).
Article 60.3 of the AFC Champions League competition regulations 2020 states that participating clubs, member associations and participating players acknowledge that once all the internal channels for dispute resolution have been exhausted, their sole recourse for settling disputes shall be to the Court of Arbitration of Sport in Lausanne, Switzerland.
Article 62 of AFC’s regulations governing the application of the statues standing orders of the congress recognizes the independent court of Arbitration for Sport (CAS) to resolve disputes between the AFC and the clubs.
The regulations state that the provisions of the CAS code of sports-related arbitration shall apply to the proceedings and CAS shall apply the various provisions of the AFC in deciding the dispute.
Article 63 expressly bars the jurisdiction of ordinary courts of law unless specifically provided by the AFC regulations, and recourse to the courts for all types of provisional measures is also prohibited.
Article 66 also confers on CAS the capacity as an appeals arbitration body to the exclusion of any ordinary court or any other court of arbitration.
Any final decision made by an AFC body can be disputed before CAS. Appeals shall be lodged with CAS within 21 days of receipt of the decision in question.
Use of provisional measures
Al-Hilal should exercise caution not to present its appeal as a violation of the laws of the game, as Article 66.3 excludes from CAS the power to deal with appeals arising from such violations.
Given the circumstances of the case, Al-Hilal should insist on a declaration that the coronavirus pandemic is a force majeure event, which the AFC competitions committee is empowered to declare.
Since CAS has the power to order the appeal to have a suspensive effect, Al-Hilal can approach CAS with a request to suspend all further matches till the appeal is disposed. Provisional measures, such as requesting the appeal to have a suspensive effect over the decision taken by AFC and suspending the other matches in the championship till the appeal is decided, although underused, can have a significant impact on the course of events.
Article R37 of the CAS code of sports-related arbitration deals with provisional and conservatory measures.
In deciding whether to award preliminary relief, the president of the division or the panel shall consider whether the relief is necessary to protect the applicant (Al-Hilal) from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the applicant outweigh those of the respondents (AFC).
Being the defending champions who have suffered a non-playing expulsion due to a global pandemic, Al-Hilal can make a strong case to suspend the championship till its case is decided.
• Dr. Mansour Al-Hajlah and Dr. Feroz Ali are Riyadh-based legal experts.