A Legal Analysis on Wimbledon’s Ban on Russian and Belarusian Players

Alexandria Anthony, Lawyer and Jackie Chan, Lawyer at SportsLawyer share their insight regarding AELTC placing a blanket ban on all athletes from Russia and whether a similar ban at the Australian Open would be legal under Australian and Victorian discrimination laws.

The All England Lawn Tennis and Croquet Club (AELTC) recently announced a ban on all Russian and Belarusian tennis players for the upcoming 2022 edition of the Wimbledon Championships. The AELTC has justified the ban by stating that it did not want Russia to be able to use its athletes as part of its propaganda in light of Russia’s ongoing war against Ukraine.

The AELTC is not alone amongst sporting organisations or bodies in sanctioning Russia through the use of bans on teams or individual athletes. However, the AELTC ban goes further than most sporting bodies by not only banning Russian teams or banning individual athletes from competing under the Russian flag, but instead placing a blanket ban on all athletes from Russia (and Belarus). Many prominent tennis players, including Novak Djokovic, Rafael Nadal, Stefanos Tsitsipas, and Andy Murray have denounced the ban as unfair on Russian and Belarusian players. However, Ukranian tennis players such as Marta Kostyuk and Sergiy Stakhovsky have supported the ban.

Whilst the ban may not violate English discrimination laws, this article examines whether a similar ban at the Australian Open would be legal under Australian and Victorian discrimination laws.

UK Discrimination Laws

In the United Kingdom, the Equality Act 2010 (Equality Act) prohibits discrimination in the workplace, including on the basis of race. Race is defined broadly in section 9 of the Equality Act to include colour, nationality and ethnic or national origins. Therefore, on its face, you might expect the Equality Act would prohibit a ban on Russian nationals playing at Wimbledon.

However, the Equality Act, insofar as it deals with workplaces, primarily deals with employer-employee relationships. Professional tennis players are not employees of the AELTC or any other organisation, and would generally be regarded as contract workers. While section 41 also prohibits discrimination against a contract worker, the Equality Act defines “contract worker” narrowly, and would not include a tennis player. This is very similar to the Equal Opportunity Act 2010 (Vic) (EOA) in Victoria, but unlike the EOA in Victoria, the UK Equality Act does not specifically prohibit discrimination in sport. Therefore, the Equality Act is unlikely to apply to professional Russian and Belarusian tennis players seeking to compete at Wimbledon.

However, even if the laws applied to Russian and Belarusian tennis players seeking to play at Wimbledon, an exception in section 195 relating to sport would likely apply to allow the ban. Subsections 195(5) and (6) together mean that there will be no prohibition on a sporting body discriminating on the basis of nationality where the body acts in pursuance of the rules of a competition so far as they relate to eligibility to compete.

Therefore, it would appear that AELTC is not prohibited under UK law from applying the ban.

Would a Similar Ban Breach Discrimination Laws in Australia?

A similar ban in Australia, if for instance applied to the Australian Open, would likely contravene Australian laws. Nonetheless, the Australian government has joined a number of other states in supporting bans on Russian athletes and teams, and urging governing bodies and legal bodies not to sanction sports organisations that ban Russian athletes.

Commonwealth law

The same ban would fall under racial discrimination laws in Australia. The primary legislation in Australia is the Racial Discrimination Act 1975 (Cth) (RDA). The ban is likely to be unlawful under either section 9 or section 15 of the RDA.

The ban would arguably contravene section 9 of the RDA because it would involve excluding Russian people based on their national origin with the effect of nullifying the enjoyment and exercise of their freedom to compete in the sport of tennis. Whether this section would prohibit application of the ban would likely depend on whether participation in the Australian Open could be characterised as a “cultural activity” under the Convention on the Elimination of all Forms of Racial Discrimination with the status of a fundamental freedom. Alternatively, it should be prohibited pursuant to section 15 of the RDA which deals with discrimination in employment, which is defined to also relate to contracts for services (and therefore contract workers).

Victorian Laws

In Victoria, the EOA specifically protects people from discrimination on the basis of a number of attributes. These attributes include race and political belief or activity.

Section 71 of the EOA specifically prohibits discrimination in sport. It states:

A person must not discriminate against another person –

• by refusing or failing to select the other person in a sporting team; or
• by excluding the other person from participating in a sporting activity.

This section encompasses any discrimination on the basis of race (which includes nationality or national origin) and political belief.

The ban would contravene section 71 of the EOA because it would involve discriminating against Russian people by excluding them from participating in a sporting activity on the basis of race. Furthermore, section 71 may protect Russian athletes from discrimination even if they were supportive of the Russian government’s war against Ukraine. This is because section 71 also protects people from discrimination on the basis of their political beliefs.

Victoria also has a Charter of Human Rights and Responsibilities which may impact on a Court’s decision on whether a ban is considered discriminatory.

Internal Policies and Rules

Aside from legislation, there may also be internal policies or rules within the competition or sporting body which may be breached if the ban was to be implemented. A decision to implement the ban may be subject to a challenge in an internal tribunal or a Court. For example, the arbitration court of the International Federation of Luge (FIL) recently overturned a decision by FIL to ban Russian athletes from competing in the sport of luge.

How Could Russian Tennis Players Challenge a Similar Ban in Australia?

A ban which breaches Australia’s discrimination laws could be challenged in different legal tribunals and courts depending on which jurisdiction is being relied upon.

For breaches of the RDA, an athlete can submit a complaint about the ban to the Australian Human Rights Commission (AHRC). The AHRC can then investigate the complaint before requesting that the parties attempt to resolve the dispute by conciliation. If the complaint cannot be resolved at conciliation, the parties may take the dispute to the federal courts. If a court finds that the ban has contravened the RDA, it can make orders against the sporting body to compel the sporting body to remove the ban and/or compensate the athlete.

For breaches of the EOA, an athlete can make a complaint about the ban to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). VEOHRC can assist the athlete and the sporting body to try to resolve the complaint, but cannot make orders or award compensation. If the athlete wishes to obtain an order for the ban to be removed, they should make a complaint to the Human Rights list of the Victorian Civil and Administrative Tribunal (VCAT). The VCAT process is similar to the AHRC process. VCAT will attempt to assist the parties to resolve the matter at mediation before taking on any final hearings. If the mediation is unsuccessful, then the matter will proceed to a final hearing whereby VCAT can make appropriate orders and award compensation. A VCAT decision can be appealed on a question of law to the Supreme Court of Victoria or the Court of Appeal of Victoria.

Internationally, a dispute on the ban could be heard in the Court of Arbitration for Sport (CAS) if both the discriminated athlete and the sporting body submitted to its jurisdiction. There are currently a number of cases which have been filed in CAS where various Russian sporting bodies are contesting bans on Russian athletes by various international sporting bodies. None of the cases have been listed for final hearing as yet, although there have been decisions on whether to grant an interim injunction. No application for an interim injunction has succeeded so far, but CAS noted in denying an interim injunction application that “the likelihood of success on the merits cannot be definitely discounted”, suggesting that there is a reasonable likelihood of a challenge succeeding at CAS.

In the case of Islamic Republic of Iran Judo Federation v International Judo Federation (CAS 2019/A/6500; CAS 2019/A/6580), the CAS Panel held that that the principle of neutrality “requires that no political interference whatsoever [be] exercised on the activities of a sporting organization” and that “athletes must be free to exercise their sport without any political interference“. Russian athletes may be able to use this as a basis for contesting a ban.

Conclusion

A ban on Russian tennis players, as has been implemented for the Wimbledon Championships in the UK, would likely be found to be unlawful if applied in Australia. Athletes would have a number of avenues for challenging the ban.

Internationally, further clarity on the legality of Wimbledon’s ban and other similar bans will be provided when CAS finally makes its decisions on these cases.

Alexandria was admitted as a lawyer in Victoria in November 2018. She moved to SportsLawyer in 2021 to follow her passion for sports and employment law after 3.5 years working at Clayton Utz. She holds a Juris Doctor degree (with Honours) from the University of Melbourne and a Bachelor of Arts (Honours) majoring in Philosophy and Human Rights Theory from Monash University.
In her spare time Alex is a keen long distance runner and Australian Rules football umpire, and she has published a number of sports law and employment law articles. Connect with Alex via LinkedIn.