A Legal Analysis of Luis Suarez’s Options For Appeal Against His Suspension By FIFA, or It Ain’t Over ‘Til It’s Over

Down, but perhaps not yet out (Photo: 1.skysports.com)

Down, but perhaps not yet out (Photo: 1.skysports.com)

FIFA has effectively banned Luis Suarez from the World Cup – or has it? OTF’s James Vlahakis has been looking at the options available for an appeal…

[Editor’s Note: James Vlahakis is a lawyer, but when he’s not working, he likes to read about soccer. And when he’s doing neither of those things, we cajole him into writing about legal matters pertaining to soccer. And then wreck his analysis with these interjections.]

While the public debate rages on as to whether the ban was too harsh or not harsh enough, behind closed doors, Suarez and Uruguay’s lawyers are quickly preparing an appeal. FIFA’s disciplinary rules provide a short, three-day time period to lodge an appeal. That doesn’t prevent Suarez and Uruguay from filing an appeal in less time. FIFA’s procedures do not identify a time period by which it must rule on an appeal.

You don’t need a law degree to know that FIFA will likely deny the appeal. But, as discussed below, Suarez can also appeal FIFA’s decision to the Court of Arbitration For Sport (CAS).

Before I discuss CAS, let’s look at the evidence. 

Yeah...about the evidence, Luis: it doesn't look great for you. (Image: dailymail.co.uk)

Yeah…about the evidence, Luis: it doesn’t look great for you. (Image: dailymail.co.uk)

The evidence would appear pretty spot-on, so Suarez’s lawyers are going to have to raise a different argument. [Editor’s Note: I believe this is legal-ese for “looks like you did it, buddy – we’ll have to find another way to get you out of this.”]

They might, for example, argue that the punishment is excessive, but that argument seems unlikely to win: considering the available evidence and his prior history, the punishment does not seem over-the-top. [Editor’s Note: And I believe this is legal-ese for the punishment fits the crime.]

While Liverpool could arguably have standing to file an appeal, any reduction in his ban won’t help him play in the World Cup.

The only other type of appeal he could lodge is one that attacks the procedures used by the Disciplinary Committee. Such an approach won’t challenge the evidence used, but will focus on the process. The only procedural issue I see is a weak one at best: Suarez was required to respond in less time than the disciplinary rules provide.

[Editor’s Note: It’s all about the difference between 5 pm Brasilia time and midnight in Switzerland – as explained here.]

This argument should lose because it is hard to see what prejudice Suarez suffered from having a slightly shortened response time. It’s not as if Suarez was denied the chance to submit a camera angle that exonerates him or raises a reasonable question as to whether he allegedly bit Chiellini. 

[Editor’s Note: Evidence seems clear and the procedural argument rests on whether two hours would have made a difference to Suarez’s defense…hoo boy, this is gonna be tough for you, Luis.]

More time might have permitted a slightly better class of character witness (Photo: ibnlive.in.com)

More time might have permitted a slightly better class of character witness (Photo: ibnlive.in.com)

One quirk in the FIFA disciplinary rules is that there is no set time frame by which the appeal board must rule. It’s possible that the board could sit on a decision until the end of the World Cup, or until Uruguay is eliminated.

That might still help Liverpool fans, but not so much Uruguay, who (without great justification) appear to feel there is a vast “European” conspiracy to destroy Suarez.

If the FIFA appeal board rules against Suarez, he can take an immediate appeal to CAS, which is based in Switzerland. CAS has set up an ad hoc division to address issues arising from the 2014 World Cup, presumably is based on Brazil.

According to CAS’s website:

Image: tas-cas.org

Image: tas-cas.org

CAS has drafted specific “Arbitration Rules For The FIFA 2014 World Cup™ Final Round”. [Editor’s Note: we shall call them Arb. Rules, because we’re about to get quite friendly with them.]  

The Arb. Rules state that an “ad hoc Division of the CAS” will be set “for the resolution by arbitration of any disputes covered by Article 67 of the FIFA Statutes, insofar as they arise during the final round” of the World Cup. A review of the CAS website does not identify the members of the ad hoc Division of CAS which has been set up to hear World Cup disputes.

[Editor’s Note: knock yourself out, reader – http://www.tas-cas.org/general]

Article 67(3) of the FIFA Statutes provides that CAS “does not deal with appeals arising from: a) violations of the Laws of the Game.” This requires me to discuss whether the charges against Suarez constitute violations of the Laws of the Game. 

I am not aware of any published decision addressing what is appealable or not, so this allows me to drop in lawyerly phrases, such as “subject to further review, I conclude that . . . ” and non-lawyerly phrases like “FIFA’s 2014/15 Laws of the Game contains 144 pages of rules . . . , I’m not a referee,” “I’m just a goalie,” and “I’ve only back-packed through Switzerland, I don’t know Swiss law.”   With that said, here’s my analysis.

[Editor’s Note: in other words, Luis, if you really want this nailed down, you’re going to have to throw James a few billable hours.]

If Suarez was found guilty of violating the Laws of the Game, he would not be allowed to appeal the decision to CAS.  By way of example, Croatian footballer Josip Simunic decided to appeal his 10 game ban to CAS after he was charged under Article 58(1) of the FIFA Disciplinary Code which prohibits discrimination. 

Simunic’s conduct occurred after a game and involved alleged nationalistic/discriminatory chants. Simunic’s appeal may serve as important precedent because Article 58(1) stands alongside Article 57, which was one of the two provisions under which Suarez was charged. Ultimately, Simunic’s appeal was denied by CAS and he was banned from the World Cup.

Simunic will next be appealing the decision to have his Rogaine treatments start on his neck (Photo: dailymail.co.uk)

Simunic will next be appealing the decision to have his Rogaine treatments start on his neck (Photo: dailymail.co.uk)

FIFA charged Suarez with violating Article 48(1)(d) which falls under Section 2 of the Disciplinary Code, addressing “Disorderliness at matches and competitions.” 

In contrast, Section 1 of the Disciplinary Code specifically identifies “Infringements of the Laws of the Game.”  Articles 46 and 47 of the Disciplinary Code, discuss yellow and red card offenses, and fall under Section 1 of the Disciplinary Code.  

Article 67 of the FIFA Statutes appears to be intended to prevent recipients of yellow and red cards from appealing them to CAS.  As well it should, otherwise CAS would be inundated with appeals (some valid, most not).

Here, Suarez was not charged by FIFA with violating Articles 46 and 47.  Accordingly if my analysis is correct, without quoting a bunch of arcane Latin phrases which discuss statutory interpretation of phrases, the interplay between Article 67 of the FIFA Statutes and Article 1 of the World Cup Arb. Rules would not prevent Suarez from appealing the suspension and fine to CAS. 

More on this below.

Don't get confused, Luis: he's saying you have a shot at an appeal because you DIDN'T get a card. (Photo: dailymail.co.uk)

Don’t get confused, Luis: he’s saying you have a shot at an appeal because you DIDN’T get a card. (Photo: dailymail.co.uk)

In my earlier analysis I argued that FIFA was wrong to charge Suarez under Article 48 as it directly relates to additional punishment related to red cards, and Suarez escaped a red card. At the same time, I noted that Article 48(3) broadly provides for “[he right is reserved to punish an infringement in accordance with art. 77 a.”

I concluded that is not clear from the wording of the Article 48(3) whether additional punishment can be ordered through Article 48(3) if no red card has been issued.

FIFA also charged Suarez with violating Article 57 of the Disciplinary Code (which provides for punishment for players whose behavior “violates the principles of fair play or whose behavior is unsporting in any other way”). Article 48 and Article 57 are both listed under Section 2 of the Disciplinary Code which describes “Disorderliness at matches and competitions.”

As noted above, Section 1 of the Disciplinary Code is arguably limited to the Laws of the Game. The 2014/15 Laws of the Game do not discuss “disorderliness” or “fair play.”  However, the Laws of the Game identify numerous examples of “unsporting behavior” as a cautionable offense.

This confuses the issues by suggesting that charging Suarez with unsporting behavior falls under Article 67 of the FIFA Statutes (which is not appealable to the CAS). But again, Suarez was not cautioned or sent off for any of the numerous examples of “unsporting behavior.” 

While it is a close call, I believe that Suarez’s conduct falls outside violations of the laws of the game, and thus his appeal is not prohibited by Article 67(3) of the FIFA Statutes.

The fact that Suarez was retroactively punished by FIFA under Article 77 of the Disciplinary Code for behavior that was not seen by the referee may operate in Suarez’s favor to allow Suarez to appeal his ban.

In summary,an appeal from a charge and conviction under Article 57 of the Disciplinary Code does not appear to be prohibited by Article 67(3) of the FIFA Statutes.

[Editor’s Note: This seems clever – he may have done it, and the procedures might have been followed sufficiently, but since he got no card and the referee didn’t see what happened, and he was charged with something not specifically mentioned in the Laws of the Game, he’s not guilty of breaching those laws. CAS appeal, ahoy!]

Don't get carrier away, Luis, he's just saying you might be allowed to appeal - you still need to make a plausible case. (Photo: dailymail.co.uk)

Don’t get carried away, Luis, he’s just saying you might be allowed to appeal – you still need to make a plausible case. (Photo: dailymail.co.uk)

As I noted in my original piece, FIFA could have avoided all if this drama by simply giving Suarez a three match ban.  If it had done that, FIFA’s rules provide no right to internally appeal a three game match.

At the same time, if FIFA had issued a three game ban, Suarez would have been precluded from appealing the ban to CAS which “does not deal with appeals arising from: . . . b) suspensions of up to four matches or up to three months . . . ” according to Article 67(3) of the FIFA Statutes.

[Editor’s Note: Again – the whole back-and-forth goes away if, you know, FIFA had just read their own rulebook instead of throwing it at Suarez.]

There is no stated time limit which governs when FIFA must respond to any appeal that is lodged by Suarez. 

In contrast to FIFA, the CAS is intended to provide a quick response once FIFA’s appeal process is “previously exhausted.”   Article 16 provides that the Panel “shall summon the parties to a hearing on very short notice immediately upon the receipt of the application.”

At the same time, “[i]f it considers itself to be sufficiently well informed, the Panel may decide not to hold a hearing and to render and award immediately.” 

Article 19 requires the Panel to issue a decision within 48 hours of the receipt of an application. The timing features won’t help Suarez play this weekend but theoretically it might help him in the next rounds assuming that FIFA promptly denies his as yet-to-be filed appeal.  

Justice is served fast around here (Image: extremelyhilarious.blogspot.com)

Justice is served fast around here (Image: extremelyhilarious.blogspot.com)

Of course, this is not a full description of CAS. Most importantly, CAS is truly set up to entertain legal arguments and objections as its members “must have legal training” as set forth in Article 13 of the Arb. Rules.

The above procedures only govern appeals to the ad hoc Panel. According to Article 21 of the Arb. Rules, the ad hoc Panel could chose to issue a final award or refer Suarez’s claim to the normal CAS panel which would then hear the proceeding in accordance with the Code of Sports Related Arbitration.

[Editor’s Note: So they could slow the whole process down again…]

You're a wealthy man - why not just take a little holiday if it all seems too much? (Photo: uk.eurosport.yahoo.com)

You’re a wealthy man – why not just take a little holiday if it all seems too much? (Photo: uk.eurosport.yahoo.com)

Suarez has one other chance to play – albeit a longshot. 

According to Article 14 of the Arb. Rules, “[i]n case of extreme urgency, the President of the ad hoc Division of the Panel . . . may rule on an application . . . without hearing the respondent [FIFA] first.”  Factors that the President and/or the members may consider fall within traditional requirements for granting preliminary injunctions under American law.

For example, as an applicant, Suarez would have to demonstrate that “the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the applicable outweigh those of the opponent or the other participants in the FIFA World Cup.”

I could write an entire column on how to weigh these factors but I’ll spare your eyesight and avoid putting you to sleep.

But in summary…

As to the first element, Suarez (and arguably Uruguay) can show irreparable harm: without him, Uruguay has a slim chance of advancing. [Editor’s Note: I got this! Uruguay’s record with Suarez in lineup at this World Cup – won twice. Without him – lost 3-1.]  

The only problem is that Uruguay may be out of the tournament by the time this gets before the CAS.

As to the second element – “the likelihood of success on the merits of the claim” – this goes against Suarez; unless his lawyers come up with an amazing argument that nobody else has dreamed of, he has little likelihood of success on the merits.

As for the third element, this can go both ways. While Suarez can argue that his right to play outweighs his opponents or other participants [Editor’s Note: Hey, half the 32 teams in the tournament are already out – what do they care?] , FIFA will likely argue that his opponents have a right to be protected from him and that FIFA is acting to protect the “integrity” of the “beautiful game.”

Mind you, many fans of soccer have and will continue to argue that FIFA’s integrity on numerous issues is suspect at best.

If you could look a little less like you are encountering this concept for the first time, Claudio... (Photo: theguardian.com)

If you could look a little less like you are encountering this concept for the first time, Claudio… (Photo: theguardian.com)

In my opinion, Suarez is involved in a race against the clock to see if he can have his appeal heard (and presumably rejected by FIFA) in enough time to have his appeal heard by the CAS. 

Even if he can win this race, it may be an academic exercise unless he can convince CAS that his ban is too long or that some procedural flaw violated his due process rights.

In the end, the appeal may be less about the World Cup and more about getting his ban reduced to allow him to play professional ball, wherever that may be given recent sale rumors and Liverpool’s understandable reluctance to openly support Suarez or accuse FIFA and the world of engaging in a conspiracy (unlike some Uruguayan officials).

Suarez and his supporters face a longshot, but in a sport that can regard itself as greater than life and death (to paraphrase England’s Bill Shankly), it would be surprising if the Suarez camp didn’t attempt to take up every conceivable appeal to allow him to play in the World Cup final, or whatever part of the tournament is still available to Uruguay by the time this plays out. 

While many have openly suggested that Suarez is a villain, others have stated that they would have him on their team if it only served to win a World Cup. Such is soccer: the “beautiful game.”

Always a place for you on Diego's team, Luis. (Photo: peru.com)

Always a place for you on Diego’s team, Luis. (Photo: peru.com)

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OTF’s James Vlahakis went to law school so you didn’t have to – thank him @jvlaha.

One thought on “A Legal Analysis of Luis Suarez’s Options For Appeal Against His Suspension By FIFA, or It Ain’t Over ‘Til It’s Over

  1. Pingback: Legal Analysis of FIFA’s Decision that it cannot retroactively discipline Juan Zuniga | OTF Soccer

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