Islj 2009 3-4 - TMC Asser Instituut

Article 95 of the CHL Rules governs the team list at the match itself.
According to this article, the list may not include more than four foreign
hockey players, regardless of the positions they play. Moreover,
the team list for a Russian club for any given championship match can
not contain more than one foreign goal-minder.
The CHL Rules also establish an interesting restriction with respect
to the play time of foreign goal-minders. Thus, in the first stage of the
championship foreign goal-minders cannot spend more than 65% of
the team’s play time during official match time.
Given violation of the above provisions, the CHL Disciplinary
Committee may apply sanctions in the form of a fine, or disqualification.
The regulatory documents of the CHL do not stipulate any specific
sizes for sanctions punishing violation of the foreign-player limit.
We note that the CHL Rules establishing the limit were adopted
by a commercial entity, OOO CHL, while the right to establish such
restrictions is only possessed, according to law, by pan-Russian social
organizations.
Meanwhile, Russian sports lawyers currently offer two main opinions
on the problem of limits.
Lawyers supporting the first viewpoint consider that the limit existing
in RFU football competitions does not allow for discrimination
against foreign athletes, because the limit does not restrict clubs in
terms of the number of foreign footballers hired, but only restricts the
number on the field at any one time. Therefore, all foreigners hired
by the club can theoretically appear on the field sooner or later, and
can even get to stay on the field permanently, given sufficient effort.
Similar arguments were put forward by the RFEF when reviewing the
Simutenkov case.
Those in favour of this approach should consult the definition of
discrimination itself, as listed in both Russian legislation 10 , and in
international treaties and agreements ratified by the RF 11 . According
to the above documents, any discrimination whatsoever on national
grounds is banned in the field of labour.
Thus, according to ILO Convention, No. 111, the term “discrimination”
includes:
any difference, exclusion or preference, executed on the grounds of
race, skin colour, gender, religion, political convictions, foreign origin
or social provenance, which leads to the abrogation or violation
of equal opportunities or treatment in the field of labour and
endeavours; any other difference, exclusion or preference, leading
to the abrogation or violation of equal opportunities or treatment
in the field of labour and endeavours.
Therefore, absolutely no inequality and discrimination on grounds of
nationality is allowed. The fact that the limit, current in both football
and hockey, establishes an inequality between citizens of Russian and
foreign citizens, flows from the language of the limit itself. For example,
there is discrimination impacting the rights of the seventh foreign
player in football premier league matches or hockey goal-minders,
who have the right to spend just 65% of matches on the ice in the first
10 Part 2, article 19 of the RF Constitution,
part 2, article 3 of the Labour Code.
11 ILO Convention No. 111, On
Discrimination in the Field of Labour
and Endeavours .
12 Zakon, No. 1, January 2008, P. A.
Kalinichenko. The ruling on the
Simutenkov case and its consequences.
round of hockey competitions. Moreover, discrimination by nationality
is most obvious in football matches of the second division, as foreigners
have no right to play whatsoever.
The second viewpoint is that sport should be recognized as a special
field of social relations, and establish for this field special rules,
which differ from the rules in other spheres of life. This is the concept
of the so-called “specificity of sport”.
The benefits for the sport of a foreign-player limit are obvious to
all. I consider that all countries will eventually come to this point of
view, as is confirmed by the latest statements by leading FIFA and
UEFA officials. In this connection, it is necessary to adopt laws and
enter into agreements, including international treaties, which take
into account this special nature of sport, making provision for targeted
policies on sport.
6. General conclusions
Thus, after performing a legal analysis of the foreign-player limits current
in football and hockey championships of the RFU and the CHL,
as well as reviewing Russian national legislation regulating relations in
the field of labour and in the field of physical culture and sport, as
well as international treaties and agreements ratified by Russia and
related to the above legal relations, the following general conclusions
can be drawn.
1. The foreign-player limit current in Russian football competitions is
established by the regulatory norms of a pan-Russian social organization,
the RFU, which means that this restriction largely complies
with the provisions of article 16 of the Federal Law On
Culture and Sport.
However, the limit is universal and covers absolutely all types of
foreign footballers, including citizens of Belarus and citizens of EU
member states which, as we ascertained earlier, violates international
agreements and treaties ratified by the Russian Federation.
Unlike the EU, where, as a result of the Simutenkov case, norms
reinforced in the agreement between Russia and the EU, as well as
the entire set of partnership agreements between the EU and third
countries, received the status of norms of direct effect 12 , in Russia
the fact of discrimination of rights of foreign athletes by means of
foreign-player limits remains to be demonstrated in new court proceedings.
Thus, although the foreign-player limit currently in place in
Russian football is formally lawful, we consider that if a footballer
who is a citizen of an EU member state files a lawsuit, the court
reviewing the case will have sufficient grounds to issue a ruling similar
to that issued on the case of Simutenkov, recognizing the limit
in Russian football competitions to be discriminatory on grounds
of nationality, with respect to the terms of employment.
2. We consider that the risk that a foreign-player limit established by
the rules of the CHL will be successfully appealed in court is far
higher than for the rules adopted by the RFU. As was stated above,
OOO CHL is a commercial entity, while the Federal Law on
Physical Culture and Sport extends the right to restrict participation
by foreign athletes in competitions only to pan-Russian social
organizations. The points discussed above, regarding the risk of an
appeal against the limit due to its contradiction of international
treaties and agreements ratified by the Russian Federation, are also
valid for hockey competitions.
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