21.12.16

UEFA to review rules prohibiting political protests: A Victory for Freedom of Expression?

Image source: Scotzine

On  a day where politics in football was thrashed once again into the spotlight, UEFA released a statement confirming that it was to review the flexibility of its current disciplinary regulations that provide a blanket ban on all political messages, at football matches, across European competitions.

How did we reach this stage?

The current UEFA rules on political messages can be found under Article 16(2)(e) of the UEFA Disciplinary Regulations 2016 which state that all associations and clubs are liable for the use of gestures, words, objects or any other means to transmit any message that is not fit for a sports event, particularly messages that are of a political, ideological, religious, offensive or provocative nature. That same section applies strict liability whereby all associations and clubs are liable even in the event that they can prove the absence of negligence, on their part. 

As a result of those rules, many clubs and associations have been sanctioned for fans displaying political messages in some way or another, some of which include:-

  • FC Barcelona
  • Celtic FC
  • St Johnstone
  • Dundalk FC
  • Football Association of Albania
  • Football Association of Serbia
  • Beitar Jerusalem
  • St Etienne
  • Romanian Football Federation
  • Football Federation of Moldova
  • Legia Warsaw

Some clubs, such as FC Barcelona and Celtic FC whose stadiums have historically been a forum for political protest, have repeatedly received sanctions through the years for flying banners and flags (deemed to be political, by UEFA). This came to a head, however, in June 2016, when FC Barcelona received yet another sanction, for fans flying the Estelada flag. 
source: http://images.performgroup.com/di/library/GOAL_INTERNATIONAL/c1/24/barcelona-fans-catalan-flag_1wfv6flty60ly1tztvt6riqkfn.jpg?t=-1231095730

The Catalan Estelada flag has become a symbol of the independent movement in the Catalonia region and is regularly flown by Barcelona fans both at domestic and European fixtures. 

In July 2015, the club was fined €30,000 after the flag was flown at the Champions League final, in Berlin, against Juventus. This was followed by another fine of €40,000 in September 2015 when the flag was flown at a fixture against Bayern Leverkusen. However, in June 2016, the Spanish club was fined a whopping €150,000 for the flag being flown at fixtures with BATE Borissov and AC Roma, during the 2015/16 campaign. 

The fine in June 2016 appears to be the straw that broke the camel's back and FC Barcelona stated that they would do everything that they could to challenge UEFA's rules which they described as being "oppressed to the exercise of freedom of expression" and not modernising along with the game. As such, they appealed UEFA's decision to the Court of Arbitration for Sport (CAS). 

At the preliminary hearing, the club reiterated the right to freedom of expression on behalf of its members and fans. They argued that the Estelada flags were not offending anyone and that UEFA's rules had to evolve along the assumption that the right to freedom of expression is allowed so long as it is carried out in a peaceful manner. 

The CAS is said to have been interested in the historical development of such symbols at the Nou Camp. However, no arbitrary decision was finalised as the club eventually dropped their appeal after being notified by UEFA that it would review the flexibility of its current rules on political messages in football.

In relation to the open case concerning the fixtures against BATE Borissov and AC Roma, it is understood that FC Barcelona and UEFA will follow a special procedure to resolve the matter in a mutually satisfactory manner. Therefore fines are likely still to be paid, in relation to those breaches, albeit probably reduced.

**It is worthwhile noting that the Spanish club was also involved in a legal battle with the Spanish Government over the Estelada flag being displayed, by fans, at the Copa Del Rey Final. The Spanish Court, however, found in favour of the club and fans were allowed to fly the flag.**

The UEFA Statement

As discussed, UEFA released a statement on 19 December 2016 advising that it was to review the flexibility of its Disciplinary Regulations in relation to political messages. The governing body stressed that presently, there is little scope for the disciplinary bodies to depart from the established rules and as such, the rules must be enforced as they stand, including with respect to the existing prohibition of political type messages at football matches. 

The governing body thereafter went on to say the following:

"At the same time, UEFA recognises that rules of this nature are not "set in stone" and that they can, and should, evolve to reflect the nature of the society in which we live, where freedom of expression is generally a value to be supported and cherished. 

While UEFA does not want football matches to be used for the purposes of political demonstrations, it also would have no wish to sanction any club or national association in situations where no reasonable person could object to, or be offended by, a particular message conveyed at a football match.

Consequently, UEFA is also happy to re-examine the precise scope of its existing Disciplinary Regulations in order to ensure that, if and when any sanction is to be imposed, this only happens in circumstances and cases where the majority of reasonable people think that a sanction should be imposed.

With this in mind, UEFA will also establish a working group, involving both clubs and national associations, to review the disciplinary framework and which will make appropriate recommendations."

One of the key points to take from the UEFA statement is that the governing body is still adverse to political messages being conveyed at football matches and cases will still fall foul if it can be shown that the 'reasonable person' could be offended. However, cases are likely to be reviewed on a case-by-case basis with strict liability no longer applying, where political messages are concerned. This demonstrates that the governing body is attempting to strike a fair balance between it's position on political messages and the right to freedom of expression. 

Going forward, in determining whether a case falls foul of its disciplinary regulations, the statement indicates that UEFA will adopt the 'reasonable man' test which will allow clubs and associations to put forward a defence which will include arguments for why the political message/symbol/flag conveyed should not be considered as offensive. In considering those defences, the governing body will likely take into account not only the general public perception but also the clubs' opponents, during the fixture that the message was conveyed and whether those fans were likely to be offended, in the circumstances. 

Another positive is the implementation of the working group which will allow detailed discussions to be held with clubs and national associations and thereafter, for recommendations to be put forward in amendment of the rules. This development will allow clubs the opportunity to discuss not only their own difficulties experienced with the regulations (some of which may differ from Barcelona's experiences) but also the history of their own club/symbols and the general fan movement. You will note that Barcelona's argument to the CAS centred around not only their fans freedom of expression but also the history of the symbols entrenched at the Camp Nou. 

The UEFA statement, confirming the decision to review freedom of expression, was released (perhaps strategically) on the very same day that FIFA fined the four home nations for poppy displays at World Cup qualifying matches, that remembered the nations' war dead, the decision of which created a lot of debate globally, as well as in the UK. Ultimately, whatever side of the fence you're on, the recent development from UEFA is likely to result in increased fan freedom to make political protests at football games or at the very least, result in less severe sanctions for clubs and national associations. Once recommendations are adopted and new rules implemented, it will be interesting to see how the initial wave of cases are determined (including those messages unrelated to the fixture in question and those deemed not to be local political messages) and whether other governing bodies, such as FIFA, will follow suit.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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