FIFA’s evolving stance on commemorative symbols: The poppy appeal case

Published 21 February 2018 | Authored by: Neeraj Thomas

On 11 November 2016, England played Scotland in a FIFA 2018 World Cup qualifier match at Wembley Stadium. The match was not particularly memorable for anything that happened on the pitch (at least for those of us north of the border). Rather it was the furore that followed the match that was most widely reported. In particular, the fact the Scottish and English players wore black armbands with a poppy symbol, given the match’s proximity to Remembrance Sunday sparked fierce debate. As many readers will be aware, poppies are traditionally regarded as a symbol of remembrance of soldiers who have died during wartime, especially in both world wars.1

There were numerous media reports leading up to the game querying whether or not the English and Scottish players would indeed wear poppies to mark the occasion2. Many commentators claimed it was the right thing to do (Theresa May classified FIFA’s attitude towards poppies as “utterly outrageous3 whilst others questioned whether the risk was really worth it4). The risk was, of course, disciplinary sanctions being imposed by FIFA.

In light of the broader tensions between sport and politics, this article considers FIFA’s case against the home nation Football Associations for wearing and/or displaying poppies during international matches, and their subsequent change in approach towards such commemorative symbols. Specifically, it looks at:

  • FIFA’s rules and regulations preventing “political symbols” and the lack of specification

  • The meaning of “political

  • The meaning of “equipment

  • The first instance decision against the home nation FAs

  • The appeal decision and CAS proceedings

  • FIFA’s change in approach towards commemorative symbols

  • Comment on the tensions between sport and politics

The author acts for the Scottish FA.

FIFA Rules and Regulations

FIFA have had long-standing rules seeking to prevent “political symbols” being used in matches which fall under their jurisdiction. For the season 2016/17, the most prevalent rule containing this prohibition was found within the text of Law 4(4) (now Law 4(5)) of the Laws of the Game (LOTG), which at that time stated:

Equipment must not have any political, religious or personal slogans, statements or images. Players must not reveal undergarments that show political, religious, personal slogans, statements or images, or advertising other than the manufacturer`s logo. For any infringement the player and/or the team will be sanctioned by the competition organiser, national football association or to be justified by FIFA.”

As is common with FIFA and UEFA regulations, none of “political”, “religious”, “personal” or “equipment” was defined.

Following the match between England and Scotland, FIFA issued a disciplinary notice5 to each of the home nations (the Welsh and Northern Irish team had also either worn poppies or had poppies on display in their stadium for their matches). The allegations were that the various home nations had breached, amongst other rules, Law 4(4) of LOTG by wearing or displaying the poppy symbol on black armbands worn by the players.

 

Lack of specification?

The lawyers amongst you may well have spotted that the relevant section of then Law 4(4) contains a number of different prohibitions such that it could be breached in a variety of different ways. For example, as a preliminary point, what was the alleged infringement?: Did FIFA allege that the poppy symbol was a “political”, “religious” or “personal” statement or image? Whilst an assumption could reasonably be made that FIFA considered the poppy to be a “political image” that was not clear from the disciplinary notice issued.

It is of course a fundamental tenet of any disciplinary process that any charge brought should allow the party subject to the proceedings to understand fully the nature of the case against them.  Any party subject to disciplinary charges also requires to be given fair and adequate notice of the case against them. There was certainly an argument that in not clearly specifying the alleged infringement, a lack of fair notice and specification had been provided by FIFA. The effect of this, it could be argued, was that the FAs were either unable, or least disadvantaged, in trying to respond properly to the case against them.

 

FIFA however, were adamant that adequate specification and notice had been provided and as such, the FAs knew their case against them such that a proper defence could be progressed, if required. As matters developed it became clear that FIFA were alleging the wearing of poppies was considered a “political” statement.

Meaning of “political

Through the various submissions made, it became clear that FIFA’s definition and interpretation of “political” was going to be crucial to the final resolution of the case. As set out above, “political” is not a defined term under LOTG. Ordinarily in documents such as LOTG, where terms are not defined, they are required to be given their plain meaning. Often this is taken to refer to a dictionary definition. The Oxford English Dictionary defines “political” as:

    1. (1) of belonging to, or connected with the form, organisation and administration of estate or part of estate, and with the regulation of its relations with other state; of or pertaining to public life and affairs as involving authority and government; relating to or connected with the practice of politics. Belonging to or forming part of a civil (especially as opposed to military) administration.

    2. (2) Shrewd, sheepishness; expedient equals politic.

    3. (3) having an organised form of government or society.

    4. (4) belonging to or taking the side of an individual, organisation, etc; supporting particular ideas, principles or commitments in politics;

    5. (5) relating to, effecting or acting according to, the interests of authority in an organisation etc, rather than matters of principle

Absent some other defined terms, the FAs argued that the above dictionary definition (or such other dictionary definition that applied) should be used. Against that criteria, the FAs argued that the poppy could and should not be considered a “political” image for the purposes of Law 4(4). The FAs also argued that if FIFA’s Disciplinary Committee were to find that the poppy was indeed a political image, they required to refer to any such dictionary definition and explain how the poppy fell within such definition.

Lastly, an argument could also be made that, having acquiesced to the English FA’s request in 2011 to wear poppy symbols on armbands in a match against Spain,6 FIFA were in a difficult position seeking to now try and impose such a prohibition.

 

Meaning of “equipment

Another interesting element to FIFA’s charge was the fact that under FIFA’s various rules and regulations (including LOTG) an ordinary armband did not appear to fall within the definition of “equipment

Again the onus is on the entity pursuing the charge to establish that the conduct complained does indeed constitute a breach of the rules in place at the time.

Had FIFA intended plain armbands to fall within the definition of equipment, one might expect this to have been provided for in their rules and regulations.

 

First Instance Decision

In December 2016, FIFA announced that all the above-mentioned FAs had been found to contravene (amongst other things) Law 4(4) in relation the players’ wearing of poppy images on their armbands. As all four home nation teams had been adjudged to have breached the rules in slightly different ways, fines at differing levels were issued from £35,000 (for the English FA) down to £11,700 (for the Irish Football Association).

There had been some commentary regarding the possibility of a deduction of points.7 Such sanction is provided for under FIFA’s regulations. However, a fine was always likely to be the most likely sanction if the home FAs were found in breach. Whilst the full decisions have not been published, and as such cannot be referred to in this article, cognisant of the likely uproar at such a decision the Chairman of FIFA’s Disciplinary Tribunal stated:

With these decisions, it is not our intention to judge or question specific commemorations as we fully respect the significance of such moments in the respective countries, each one of them with its own history and background".

In receipt of the full written decision from FIFA’s Disciplinary Committee, in February 2017, the Scottish, English and Welsh FAs all appealed to the FIFA’s Appeal Committee.

 

Appeal decision and CAS proceedings

Appeals were duly submitted and in May 2017, FIFA’s Appeal Committee decided that the appeals should be rejected and instead upheld the Disciplinary Committee’s decision of first instance. Again full reasons have not yet been published, but the remaining home associations clearly felt that neither the Disciplinary nor Appeals Committee had properly applied the LOTG and other rules and regulations to the facts of the cases. As such, all announced their decision to appeal to the Court of Arbitration for Sport (CAS).

 

A change in approach by FIFA?

In September of this year FIFA issued a circular9 to all nations that effectively “relaxed” the rule on symbols such as poppies. The new rules provide that:

when commemorating a significant national or international event, the sensibilities of the opposing team [including their supporters] and the general public should be carefully considered”.10

Whilst this doesn’t necessary change or modify the wording of (now) Law 4(5) it seems to provide a “carve out” for instances where if both sides agree, a poppy, or similar symbol commemorating a significant or national event, may be worn.

Evidence of this came in the recent international friendly matches where the English and Germany players wore black armbands with a poppy symbol. Scotland and the Netherlands wore similar armbands for their match. Conscious of the fact this was likely to be a recurring issue each November (traditionally the Remembrance Day weekend is designated as an international match on FIFA’s calendar) it seems that as far as poppy’s are concerned, a common sense approach has been taken by all concerned going forward.

In light of the new approach taken by FIFA, without any admission that indeed the poppy was indeed a political image, the FAs took the commercial decision to withdraw the CAS appeal.

 

Sports and politics – the future

Whilst the matter appears to have been resolved as far as it relates to poppy’s, it is worth pointing out of course that a ban remains on slogans or images related to individual people or groups, political parties or governing bodies.

Thus, FIFA’s primary position remains that politics and football should not mix– and such an approach is understandable. Not drawing some kind of line against political gestures in football could lead to significant issues.

But the idea of politics in sport is nothing new – and indeed is brought sharply into focus today by the current protests in the NFL. There where footballers “taking a knee” during the National Anthem to highlight racial injustice and police brutality in America.11 Despite President Trump’s outburst on Twitter,12 such protests are likely to continue both in the NFL and across a number of different sports for any number of different reasons.

Sport and politics are two hugely emotive issues. Long held, passionate and forthright views are held no matter what team you support or political party you align yourself with. There are so many similarities between the effect that sport and politics have on people, it is inevitable that the issues often intertwine. However, as the actions taken by FIFA show, trying to separate the two is fraught with difficulties.

 

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About the Author

Neeraj Thomas

Neeraj Thomas

Neeraj.thomas@burnesspaull.com

Neeraj Thomas is a Senior Associate and leads the Sports Law team at Burness Paull LLP.

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