Limitation of disciplinary rules by the protection of personality rights
Case study on the obligation to play for the national team
by Jorge Ibarrola
In a recent radio interview, the coach of the national Spanish football team was asked what would happen if a player called to play within his team declined the invitation. Mr Del Bosque answered very elegantly, as always, that all players would die to be in the Spanish team. Indeed, one could hardly imagine, given the importance and the pride attached to an invitation to play with one’s national team, that a player would ignore such a call. However, Mr Del Bosque did not say whether he would have insisted or even try to compel the player to put on the shirt of la Roja.
Obviously, when the indisposed player summoned to the national team is “only” the 22nd or 23rd player selected by the coach, one could expect that it would be easy to choose another player willing and motivated to join the prestigious group. But what if the player is a key player or one of the best players of the country? Would there be more insistence by the Football Association to have him in the national team? And what consequences might derive from the player’s denial to play for the national team?
There are rules in the world of sport providing for sanctions in case a player refuses to play for his national team, although there are very few judicial precedents on such issue. In a recent case, the Appeals’ Panel of the International Basketball Federation (“FIBA”) had to review a disciplinary decision where a basketball player was punished for having declined the solicitation to play for his national team during the EuroBasket in 2011, the reason being that he had chosen to stay with his mother, who was in a critical health condition. He was sanctioned both by his national association and by the FIBA Disciplinary Panel for such refusal. However, eventually, the FIBA Appeals’ Panel lifted the sanction and exonerated him from any penalty.
The purpose of this contribution is to review the reasons of the player and of FIBA with regard to the suspension imposed on him and to expose the grounds of the FIBA Appeals’ Panel. In particular, we will see how the FIBA Appeals’ Panel addressed the fundamental legal question of whether the protection of the personality rights of a basketball player is compatible with the statutory duty of the latter to play for his country and whether, conversely, the latter can legitimately be sanctioned for refusing to play, whatever the reasons for which he may decline the national coach’s invitation.
In July 2011, the player was called up by his national team to prepare for and participate in the EuroBasket 2011. The preparation was to take place in July and August 2011, the EuroBasket competition being held in Lithuania from 31 August to 18 September 2011.
The player informed his national team that he could not immediately join the team, because, upon recommendation by his mother’s doctors, he was to look after his mother who was in a critical condition, until her condition stabilised. It must be emphasised that the player was the only immediate family member in his home country who was able to take care of her. The player however offered to join the national team as soon as he could.
Simultaneously, the player obtained permission from his club to train individually until the health condition of his mother would allow him to depart from his home country for preparation camps.
The player’s offer to his national team was refused, and it was made clear to him that he would not be permitted to join the national team at a later date even if his circumstances changed.
On 22 November 2011, the Disciplinary Panel of FIBA issued the following decision (“the Challenged Decision”):
“The Player is ineligible to play with any club with which he is licensed for a period of thirty (30 days) beginning on the day of communication to the Player of this Decision.”
The decision was based on the Internal Regulations of FIBA and reasoned as follows:
a Article 3-79 of the Internal Regulations of FIBA (“the FIBA IR”) provides that “any player registered with a club is obliged to reply in the affirmative when summoned to play for his national team”.
b Article 3-90 of the FIBA IR imposes a sanction for non-compliance with this provision, providing that “If a player licensed with a club is called to play on his national team for one of the main official competitions of FIBA and this player refuses to play for his national team for whatever reason (including injury or illness), he may not play for the club with which he is licensed for the entire duration of the training period and the competition. Restriction from playing for his club will be increased by thirty (30) days if the player’s refusal to play is not manifestly due to illness or injury.”
The FIBA Disciplinary Panel held amongst other things that:
“In addition, according to 3-90, 2nd sentence i.e., the restriction from playing for his club will be increased by thirty (30) days if the player’s refusal to play is not manifestly due to illness or injury”.
“It remained uncontested during these proceedings that the Player’s refusal to play for his National Team was not “due to illness or injury’”of the Player. Therefore, his restriction to play must be “increased by thirty (30) days”.”
The FIBA Disciplinary Panel outlined that there may, in extreme circumstances, be additional reasons for which a player may refuse to play for his national team. However, it concluded that no such extreme circumstances were present which would have permitted the player to refuse to participate with the national team and to “invoke an excuse not provided for in the applicable regulations, allowing him to stay away from his team”.
The player’s and FIBA’s arguments in the appeal against the challenged decision
The player appealed the Challenged Decision with the FIBA Appeals’ Panel. The appeal was based on three main reasons:
a The rule contained in art. 3-79 and the additional 30-day sanction in art. 3-90 is incompatible with fundamental rights and public order under Swiss law and international treaties, which are binding for FIBA.
b The rule contained in art. 3-79 is of disciplinary nature and provides for strict liability, which is not admissible, as nobody may have a disciplinary sanction imposed on them in the absence of any fault or negligence. Should there be an assumption of violation of a rule, the relevant party must at least be allowed to rebut such assumption and demonstrate that he/she has committed no fault or negligence, and therefore does not deserve disciplinary sanction.
c The FIBA Disciplinary Panel erred in holding that there were no circumstances present sufficient to warrant the player’s absence from the team. In addition, as other players had gone unsanctioned, despite their refusal to participate with the national team, the FIBA Disciplinary Panel had breached the principle of equality of treatment.
Breach of fundamental rights (personality rights) under Swiss law
The player’s position
The player contended that, under Swiss law (FIBA is a Swiss association based in Geneva and shall thus, according to the player, abide by mandatory Swiss law), personality rights are protected by art. 28 of the Swiss Civil Code (“CC”), which forbids any violation of a person’s personality, and art. 27 CC, which prevents anyone from relinquishing his liberty or restricting the exercise of his liberty to an extent that violates the law or morality. As stated by the Swiss Federal Tribunal, the fundamental and constitutional rights of economic and personal freedom, notably, are elements of these personality rights.
Pursuant to art. 63 (1) CC, an association constituted under Swiss law has a wide autonomy in the development and application of the rules that govern the relations with its members. However, this autonomy is limited in that the statutes cannot derogate from rules applicable on the basis of mandatory provisions of law (art. 63 (2) CC). In particular, the associative rules and decisions cannot breach the personality rights of the members.
Regarding sporting sanctions, the Swiss Federal Tribunal has held that the distinction between the rules of the game and the rules of law is irrelevant in cases of violation of the personality rights. A violation within the meaning of art. 28 CC is carried out by any human behaviour, and any act by a third party that may disturb the personality rights of others. Therefore, even the application of a rule of the game can violate these rights of personality.
The player submitted that art. 3-79 of the FIBA IR, obliging the player to play for his national team, and art. 3-90 of the FIBA IR, which imposes a sanction for non-compliance with this provision, violate the personality rights of the player, notably his or her fundamental right of personal and economic freedom.
Moreover, art. 328 ff. of the Swiss Code of Obligations (CO) provides for the same protection in the course of the employment relationship. In particular, the right to be granted a number of days to visit sick relatives, protected by art. 329 (3) CO and the Swiss jurisprudence, is undoubtedly part of this protection.
Finally, the fact that the player is subject to the FIBA IR and Statutes by virtue of his direct or indirect registration with FIBA does not change the character of the mandatory nature of the rule in art. 3-79. Whilst the player has offered his services to the team, and agreed to comply with the FIBA IR, the mandatory acceptance of this rule and the obligations it places on athletes give rise to a clear breach of Swiss law, notably art. 27 CC, which prohibits a person from relinquishing his liberty or restricting the exercise of his liberty to an extent which violates the law or morality.
Neither is there any predominant public interest justifying such a restriction of the player’s freedom and personality rights. It is common ground, for instance, that anti-doping rules, whilst restricting the athletes’ freedom of action, pursue legitimate objectives which justify such an attempt (“organisation and proper conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes“). In the present circumstances, however, one cannot see any predominant and legitimate interest justifying that a basketball player be compelled to play for the national team, against his free will, and that such player could not decline an invitation to play for the national team, for whatever reason, without incurring any sanction. At any rate, imposing a 30-day suspension on such an athlete cannot be considered as proportionate, as such measure goes obviously beyond “what is necessary to ensure the proper conduct of competitive sport“.
In response, FIBA referred to factors such as the specificity of sport and to the consideration underlying the desire to ensure that the national teams will in future continue to include the national federations’ best players. FIBA highlighted that the lack of support from the best national players on the national team, as the case may be, would to some extent involve the risk of reducing the financial resources of the national federations, which would eventually be detrimental to the sport since the national federations are extensively responsible for youth and development activities at the national level.
FIBA further contended that even if the rules in question and the resulting sanction imposed on the player would basically constitute a material infringement of his rights, such infringement is authorised as the player has accepted to submit to these rules. Being a member of the basketball family (i.e. to be registered with a club affiliated to a national federation, which again is a member of FIBA) means that the member accepts to abide and be bound by the regulations of his club, national federations and international federation. During the proceedings, the player had recognised this necessary subordination link by accepting to submit to FIBA IR.
The grounds of the FIBA Appeals’ Panel decision
The FIBA Appeals Panel ruled as follows.
– On the one hand it accepted that there was no ground for doubting that the player’s mother, at the time of the call to the national team, was in such a poor state of health that the player’s immediate presence was needed. Nor was there any ground for doubting that this was the player’s reason for not joining the team.
– On the other hand, the FIBA Appeals’ Panel also accepted the fundamental importance of the national teams, which play a considerable role for sports and situation in the relevant countries.
– The Appeals’ Panel further considered that a professional sportsman had to accept that a sanction imposed on him could prevent him from exercising his profession and from earning an income as well as reduce the opportunities of career development. Although such a sanction might well amount to a material infringement of the sportsman’s personality rights, there must be situations where the athlete has lawfully submitted to the applicable sporting rules, provided that such rules are acceptable and proportionate with regard to the fundamental interests to be protected by the sports body.
– Nevertheless, a professional basketball player cannot, on the mere basis of his membership, be assumed to have validly submitted to all the rules and regulations of his national federation and FIBA. The world of sport is characterised by a highly hierarchical structure, within which athletes are subject to extremely heavy and unavoidable duties and pressure to accept the application of rules and obligations, failing which they would not be allowed to practise the sport in question.
– The world of sport undeniably needs such vertical structure and uniform rules, at national and international federations’ levels. However, such rules must comply with general principle of law and provide only for sanctions and other legal remedies justified by the interests deserving protection. Otherwise, players may have accepted rules which in fact would not be enforceable against them.
– The positive role of national teams, as noted above, is compatible with FIBA’s Mission and Role as described in FIBA General Statutes, and definitely deserves protection. The rules pursuing such goal are thus in principle acceptable, including those providing for sanctions in the case of non-abidance, as long as, however, their nature is such that the goal can actually be legitimately achieved. The specific objective behind art. IR 3-79 and art. 3-90 is to ensure that the best national players called, really fulfil their obligation to play for the national teams. Generally speaking, FIBA Appeals’ Panel accepts the prevalence of the deterrent function that the sanction fulfils in the interest of wider objectives for the benefit of the national and international basketball.
– However, the Appeals’ Panel considered that the 30-day sanction rule in dispute is actually a sanction which, unless the player’s refusal to play is manifestly due to illness or injury, is imposed as an additional sanction beyond the period in which the player is already prevented from playing for his team, typically within the training period and the competition. It was further considered that art. 3-91–3-93 lay down rules imposing sanctions on a club or a national federation in the event that the club or federation fails to comply with and respect the player’s entitlement to play for the national team.
– The Appeals’ Panel concluded that the FIBA Internal Regulations are designed to “deter” players, clubs, as well as national federations from violating the obligation imposed by FIBA to join the national team. These rules prevent the player from playing matches for his club during the period when the national team practices and plays at the international level. Thereby, FIBA indirectly prevents the clubs from trying, directly or indirectly and for the sake of their own interests, to put pressure on their players in order that they would refuse to play for the national team. These rules are thus seen to support the players’ freedom to play for their national team in spite of their club’s reluctance. They are also designed to secure FIBA’s interests in protecting the national teams against dilution.
– On the contrary, the 30-day sanction set out in IR 3-90 appears as an additional penalty on the top of the prohibition from playing during the duration of the international tournament. The Appeals’ Panel considered that such additional sanction:
1 does not constitute an appropriate means for compelling the player to join the national team; and
2 is disproportionate with respect to the interests that are supposed to be protected in that respect.
Consequently, the Player’s appeal was upheld and the FIBA Disciplinary Panel’s decision was annulled.
The other player’s arguments
Regrettably, the Appeals’ Panel did not enter into discussion on the other arguments raised by the player, relating:
– to the prohibition of forced or compulsory labour, pursuant to art. 4.2 of the European Convention on Human Rights (EHCR) and pursuant to the Convention No. 29 “Concernant le travail forcé ou obligatoire”; and
– to the fact that the disciplinary sanction contained in art. 3-90 is based on strict liability and leads to the imposition of a penalty even in the absence of any fault or negligence. According to the player, this is contrary to the principle nulla poena sine culpa. It would not have been admissible that he could be sanctioned disciplinarily without at least giving him the opportunity to prove that he had committed no fault or negligence.
Basketball is not the only sport which sets forth a sanction on players for refusing to play for their national team. Football has a similar rule and rugby too, although they provide, respectively, only for five and ten additional days of prohibition to play after the period during which players should have been released to the national team.
This precedent might thus be of interest for other sports, in particular for other team sports.
One of the major interests of this decision, in our view, is that the Meca-Medina general concept seems to keep applying, to some extent at least, to the sports-regulated organisations and that, in the present case, FIBA, at least its Appeals’ Panel, seems to be willing to accept abidance by such concept.
Therefore, although sports bodies are legitimate to impose duties on their affiliated sportsmen, even if the sanctions in case of violation of such duties might affect their fundamental rights, such restrictions shall always be limited to what is actually necessary to ensure the proper conduct of competitive sport.
Generally speaking, the FIBA challenged rule in the case at hand might well remain a rather theoretical issue. To our knowledge, there is no publicised precedent other than the one described above. Besides, it is and will remain rather uncommon that a player refuses to wear the shirt of his national team. It is nevertheless interesting to note the result to which the FIBA Appeals’ Panel arrives, namely that the purpose of the rule in question is essentially to ensure that the clubs and the national federations to which they belong, be deterred from preventing players to accept an invitation to play at the national level. The idea is thus not to punish the player for declining such an invitation, for whatever reason. The sole consequence deriving from such refusal must be that the player would not be allowed to play for his club for the period during which he should have been released to the national team.
Another interesting conclusion is that the fundamental rights of athletes, whether pertaining to personality rights or to competition rights, are increasingly being considered thoroughly by the international federations, by the Court of Arbitration for Sport (CAS) and by the Swiss civil courts. In the last few years, the protection of sportsmen’s rights has improved significantly with regard, in particular, to the invalid statutory waiver to appeal to the Swiss Supreme Court against a CAS award; to the invalid prohibition on an athlete, having fully served a ban based on a doping offence, to participate in a competition, either locally or even in the Olympic games; or to the illegality of an unlimited suspension imposed on a football player until he would pay an exorbitant amount of money as compensation for breach of contract. To which we can add the unsustainable sanction on an athlete for refusing the call to play for the national team.
This shows a probable evolution towards the protection of the athletes’ fundamental rights, which sports instances shall undoubtedly have to take into consideration when drafting and applying their own regulations.
 Partner – Attorney-at-law, Libra Law Ibarrola & Ramoni Avocats, Lausanne.
 Art. 10 and 27 of the Swiss Constitution; ATF 113 Ia 257, 262; ATF 80 II 26, 39.
 Margareta Baddeley, L’association sportive face au droit (Helbing & Lichtenhahn, 1994), p.107 and 110. French original version: “Toute intrusion par l’association, que ce soit au niveau normatif ou au niveau décisionnel, dans ce domaine [i.e la sphère réservée du membre] constitue une violation des droits de la personnalité du membre, au sens de l’article 28 CC.”
 ATF 120 II 369 consid. 2 and the cited case law.
 ATF 7 April 1998, published in Jahrbuch des Schweizerischen Arbeitsrechts 1999, p. 232-238.
 See Judgement of 18 July 2006 of the European Court of Justice, in the case C-519/04 P, Meca-Medina & Majcen, para. 42-47. See in particular § 47:
“47. It must be acknowledged that the penal nature of the anti-doping rules at issue and the magnitude of the penalties applicable if they are breached are capable of producing adverse effects on competition because they could, if penalties were ultimately to prove unjustified, result in an athlete’s unwarranted exclusion from sporting events, and thus in impairment of the conditions under which the activity at issue is engaged in. It follows that, in order not to be covered by the prohibition laid down in Article 81(1) EC, the restrictions thus imposed by those rules must be limited to what is necessary to ensure the proper conduct of competitive sport (see, to this effect, DLG , paragraph 35).“
 FIFA has a similar rule in its regulations. In the CAS arbitration CAS 2008/A/1622-1623-1624 (award of 2 October 2008), which took place on the occasion of the Olympic Games in Beijing in 2008, the FIFA rule at stake was art. 1 para. 1 of Annexe 1 to the Regulations for the Status and Transfer of Players, which reads as follows:
“Clubs are obliged to release their registered players to the representative teams of the country for which the player is eligible to play on the basis of his nationality if they are called up by the association concerned. Any Agreement between a player and a club to the contrary is prohibited.”
FC Schalke 04, SV Werder Bremen and FC Barcelona had refused to release three key players, Rafinha, Diego and Messi, to play with their Olympic teams, because the FIFA regulations did not include, at the time, the Olympic tournament within the FIFA official coordinated calendar containing the competitions concerned by the above-mentioned rule. Interestingly, the CAS Panel outlined:
“The Panel is very well aware of the unique character of such an event like the Olympic Games, being the gathering of the sports families of the entire world. However, the indeed special nature or unique character of an event does not by itself constitute a valid legal basis to recognize the existence of a far-reaching obligation of third parties like the obligation for a club to release its players. Therefore, the specific and unique nature of the Olympic Games itself cannot be considered as valid legal basis for an obligation of the Appellants 1 to 3 to release their players Rafinha, Diego and Messi to the Olympic Games 2008.”
Therefore, the clubs’ appeals were upheld and the obligation imposed on them by FIFA to release the players was lifted by the CAS. However, the award concluded as follows:
“(…) FIFA called upon the parties, a call that was actually addressed to all the clubs, and recommended to release the players for the Olympic Games. This call was made on the grounds of the Olympic Spirit. In view of the same spirit, CAS had called upon the good will and good sense of the clubs and of FIFA to find a reasonable solution with regard to players who wished to represent their country in the Olympic Games.“
Although this case is different from the one discussed here, as it was not a refusal by the players to join the national team, but by the clubs to release them, this illustrated that the purpose of the rules regarding the release of players to play with their national team is more to protect the players against their clubs and against the national federation to which such clubs belong, rather than to sanction them.
 See Annexe 1 Rule 5 of the FIFA Regulations on the Status and Transfer of Players.
 See Regulation 9.31 of the IRB Regulations, available at www.irb.com/mm/document/lawsregs/regulations/02/02/66/59/irbregulationsrelatingtothegameeng.pdf.
 Case Guillermo Cañas, Judgement of 22 March 2007, BGE 133 III 235.
 Case Dehiba, interim order issued on 24 June 2011 by the “Cour civile” of the Canton de Vaud.
 Case Osaka CAS award of 4 October 2011, CAS 2011/O/2422.
 Case Francelino da Silva Matuzalem/FIFA Judgement of the Swiss Supreme Court of 27 March 2012 (4A_558/2011).