PARSIPPANY, N.J. – The Ukrainian Association of Football (UAF) lost its appeal against the Union of European Football Associations (UEFA) and the Swiss Football Association (SFA) following the dismissal of the case by the Court of Arbitration for Sport in a decision announced on March 19. The CAS confirmed the decision taken by the UEFA Appeals Body to rule a forfeit for Ukraine on November 25, 2020, in response to the UAF’s challenge of the decision that was filed on December 9, 2020. The UAF’s appeal was registered by the CAS on December 11, 2020.
The ruling affirmed UEFA’s decision to hold Ukraine responsible for forfeiting the UEFA Nations League match between Ukraine and Switzerland on November 17, 2020, in Lucerne, Switzerland, which was the final match of the group stage for both teams. The cancellation resulted in a 0-3 loss for Ukraine. Prior to the match, Ukraine was in third place in Group A4 with six points, while Switzerland had three points. With the UEFA and CAS decisions, the Swiss hold third place and Ukraine finished in fourth place, which forced Ukraine to be relegated from Division A to Division B in the UEFA Nations League.
The cancellation of the match was made in accordance with the special protocol applicable to the league phase of the 2020-2021 UEFA Nations League that was set out in the UEFA Regulations and Circular letters applicable to UEFA competition matches in the context of the COVID-19 pandemic.
On the day of the match after several positive tests for Ukraine’s players in mandatory pre-match testing (Eduard Sobol, Yevhen Makarenko, Dmytro Riznyk had tested positive prior to the match, and an additional three players – Ruslan Malynovskyi, Junior Moraes and Serhiy Kryvtsov – and a coach tested positive in pre-match testing), the entire Ukrainian delegation was placed in quarantine by the health authorities of the Canton of Lucerne, meaning that the match could not take place as scheduled.
The previous two results from such pre-match tests were classified as false-positives, with the explanation that the players just recently had contracted COVID-19, and they had antibodies. On November 18, the Ukrainian national team was retested for COVID-19, and all of the results were negative.
The UAF, in its appeal to the CAS, requested that the Challenged Decision be set aside and that the match in question be either rescheduled or decided by the drawing of lots, with options including a 1-0 win for either team or a scoreless result. The UAF also suggested hosting the match in another country.
Alexander Glyvynskyy, Ukraine national soccer team spokesperson, commenting on his Facebook timeline wrote:
“UEFA’s decision on the technical defeat of Ukraine, from whatever angle you look at it, is unfair – the team was ready to play, and if the local authorities did not allow it, then why does the organization that holds the competition punish the visiting team for this and does not allow the match to be played later? Although there are almost two years left before the start of the new season?
“The CAS decision not only exceeded the worst expectations, but raised the bar of absurdity to an unprecedented level of absurdity: why is a court necessary if it recognizes that the appellant is a victim and at the same time leaves the decision against which the victim is opposed in force? Is this what we have – a reflection of the Inquisition, the return of medieval times, a vassal right that a feudal lord gives or takes away? Like, guys, we feel sorry for you, but we can’t do anything? How can you not? You have all the levers for this.
“I am still sure that there is an independent and objective court in the world, but now I am also sure that I will never be able to say the same about the sports court in Lausanne.
“I can’t say exactly what happened in Lausanne: it’s corruption or some kind of corporate support of major players in world sports, but this is definitely inappropriateness, indiscriminate condemnation and blatant injustice. This is a real shame. Did they show us our place? ‘You’re just a victim, no luck.’
“Then why all these games of equality of competitive principles? For some, it means that the rules are more equal, but someone can be punished because it is not so important for the UEFA team or the players in the advertising market?
“If the CAS was afraid to create a precedent for appealing the dubious decisions of UEFA, then they created another precedent – the lack of belief that a sports court is a chance to restore justice. What the hell is justice? For them, perhaps the main thing is to work off their online hours and get away with an afternoon cocktail in peace. Someone will say why this is a surprise – the same as Europe’s spinelessness in the issue of sanctions against the Russian aggressor. Maybe so, but I don’t want to put up with it. What to do now? I don’t even know…,” Hlyvynsky wrote.
The CAS panel – comprising Manfred Nan (the Netherlands), president; Jeffery G. Benz, (U.K./U.S.A.); and Prof. Ulrich Haas (Germany) – found that the rules set out in the UEFA Circular letters were correctly interpreted and applied by the UEFA Appeals Body when it concluded that, in the absence of viable rescheduling options being available, the UAF was to be held responsible for the match not taking place, and as a result, that the match was to be considered forfeited by the UAF. The CAS Panel emphasized that, rather than being at fault, the UAF was an unfortunate victim of the COVID-19 pandemic and decided not to order it to pay any costs in favor of UEFA and/or the SFA.
The CAS judges ruled that “in the absence of viable rescheduling options being available, [Ukraine] was to be held responsible for the match not taking place,” adding that the UAF was “an unfortunate victim of the COVID-19 pandemic” and the CAS did not award legal costs to UEFA or the SFA.
The CAS decision did not reflect that, according to UEFA rules, each team must field a minimum of 13 players for a match, and Ukraine had 18 present on match day, with three determined to be COVID-positive. It was also suspicious that the Chief Officer of Health for the Canton of Lucerne, Dr. Roger Harstall, said that even those players who tested negative could have later contracted COVID-19.
The Ukrainian Society of Switzerland (USS) called attention to the selective “principledness” of Dr. Harstall with a November 19, 2020, post on its Facebook page (facebook.com/ukrainiansocietyofswitzerland): “Information from the Swiss media shocked the entire Ukrainian community. First, on Tuesday, the cantonal doctor of Lucerne sent the entire Ukrainian football delegation to the Radisson Blu Luzern Hotel for quarantine after several players tested positive for COVID-19. But within days it became known that the results of the tests of the entire Ukrainian delegation were negative.”
The USS noted that this was not the first incident that called into question the actions of the Department of Health and Social Policy of the Canton of Lucerne, including a decision on November 6, 2020, that allowed Mark Marlecu (of FC Luzern), who tested positive for COVID-19, as well as four additional team players who were isolated, to play in the match between FC Luzern and FC Zurich, which was allowed to take place in another city. There were two cases of COVID-19 for FC Zurich, as reported by the FC Zurich website, and the sick players went into isolation and “because there was no close contact with other players of the first team and the necessary rules of hygiene and protection were observed, after consultation with the cantonal medical service, no additional measures were required.” (per the website https://fcl.ch/publication/keine-weiteren-faelle/.)
The USS called the situation “controversial and rather confusing,” because “the case with the national team of Ukraine did not cause objections in the Department of Health and Social Policy of Lucerne and was resolved quickly.” FC Luzern then thanked Dr. Harstall for “prompt and fruitful cooperation on this issue.”
Ukrainian Bar Association President Denis Bugay gave his legal assessment to Dsnews.ua, noting that the local authorities of Switzerland did not take any measures to verify the validity of the decision by Dr. Harstall, and unreasonably refused the Ukrainian side to carry out PCR (polymerase chain reaction) tests again. The local authorities were clearly aware of the negative consequences that this decision could have for the Ukrainian team, in particular, relegation to Division B. But the Swiss side did not take any measures to verify the validity of Dr. Harstall’s decision. Mr. Bugay also noted that the Swiss authorities refused to retest Malinovsky, Moraes and Kryvtsov.
Mr. Bugay explained: “On November 6, the Department of Health of the Canton of Lucerne allowed the FC Lucerne team to take part in the match against FC Zurich if one of the players tested positive. Such different approaches in the admission of foreign and local teams to the match raise reasonable doubts. From a legal point of view these actions contain signs of discrimination against the Ukrainian side, which is prohibited by the generally recognized principles and norms of international law.”
He also highlighted that the city of Lucerne was not in any noticeable shutdown due to the pandemic, with cafes, restaurants, entertainment and other public institutions operational, yet a single national team was ordered to quarantine.
“So, first of all, the Swiss side’s actions contain elements of discrimination that is different with respect to the national team in the same circumstances, in the absence of objective justification. Secondly, we cannot exclude that it could be interference with the result of the competition and attempt to remove the national team of Ukraine on promotion to the elite division next year,” Mr. Bugay stated, underscoring that Ukraine was in second place in the group stage, while Switzerland was in last place, which would have seen the Swiss face an early exit from the tournament. Mr. Bugay added, “Since the cancellation of the match with Switzerland affected not only the Ukrainian national team, but also the rights of all players, this is an opportunity to use the tools of the European Court of Human Rights to protect their rights.”
A legal position is already being prepared in order to recognize the actions of the Swiss side to cancel the match as illegal and discriminatory. Mr. Bugay concluded: “Appropriate appeals and lawsuits will be initiated with the administrative and judicial authorities of Switzerland to protect the interests of the national team. If the latter do not react to gross violations of the rights of the Ukrainian team and facts of discrimination, the issue will be referred to international organizations.”
Sources: Court of Arbitration for Sport (www.tas-cas.org/en/general-information/news-detail/article/cas-dismisses-the-appeal-filed-by-the-ukrainian-association-of-football-and-confirms-that-the-match.html); Interfax-Ukraine (en.interfax.com.ua/news/sport/705270.html and en.interfax.com.ua/news/sport/705107.html).