Football: The Enzo Fernandez Affair!
By Ennio Bovolenta, Valloni Attorneys at Law, Zurich, Switzerland
On 14 July 2024, after a dramatic final against Colombia, Argentina won the Copa America with a goal from Lautaro Martinez in extra time. The Albiceleste lifted their 16th Copa win, coming on the back of their triumphs at the 2022 World Cup and 2021 Copa America.
The following celebrations were unfortunately stained by an episode that occurred on the team bus, recorded and posted on social media by the Argentinian midfielder Enzo Fernandez, currently registered with the English football club Chelsea FC.
The video under scrutiny showed Fernandez, together with other teammates, singing a derogatory chant questioning the heritage of team France's black and mixed-race players: Argentina won against France the FIFA World Cup 2022 final in Qatar.
After this episode, the French Football Federation (FFF) vowed to file a complaint with FIFA for the allegedly "racist and discriminatory" chant. Equally, Chelsea FC have opened internal disciplinary proceedings against their player Fernandez regarding this incident.
Whilst we will not dwell on the content of the controversial video, in this brief analysis, however, we will analyse which are the sports organizations potentially have jurisdiction to investigate and open disciplinary proceedings in situations such as the present one.
As a first step, it is noteworthy that the episode occurred during the celebrations of the team winning the Copa America 2024, a competition organised by CONMEBOL (the South American Football Confederation). In this respect, art. 141 of the Copa America 2024 Regulations provides that
“The CONMEBOL Disciplinary Code in force at any given time shall apply in all disciplinary and other matters within its scope of application.”
As we turn our attention to the CONMEBOL Disciplinary Code, art. 15 (“Discrimination”) severely sanctions racist conduct, as follows:
“Any player or official who insults or offends the human dignity of another person or group of persons, by any person or group of persons, by whatever means, on grounds of skin colour, race, sex or sexual orientation, ethnicity, language, creed or origin, shall be suspended for a minimum of ten (10) matches or for a minimum period of four (4) months.”
That being said, it is necessary to underline that, as a general rule, all Confederations are responsible for investigating and sanctioning disciplinary violations related to the matches and competitions under their jurisdiction.
In this respect, CONMEBOL makes no exception: art. 2 (“Material application”) of the CONMEBOL Disciplinary Code provides that
“the application of this Code extends to all matches and competitions organised by CONMEBOL. It also applies to acts of aggression towards match officials committed on and off the field of play, as well as when it seriously undermines the statutory objectives of CONMEBOL, in particular in cases of match or competition manipulation of football matches or competitions. It shall also apply in cases of violation of CONMEBOL's statutory objectives, rules of the game, the Statutes, regulations, decisions, orders and instructions of CONMEBOL and FIFA, insofar as the competence to do so does not lie elsewhere.”
With this in mind, the Fernandez episode certainly occurred off the field of play but, evidently, in a quite uncertain moment and location after the conclusion of a CONMEBOL match.
On account of that, in principle, it may be questionable to conclude that CONMEBOL is competent for an episode that, although it happened after a CONMEBOL match, it took place some time after and, on a bus, situated in uncertain whereabouts. In other words, it is not that straightforward whether the episode can be referred to a match organised by CONMEBOL for the purposes of the application of its Disciplinary Code. Nevertheless, it is also true that the episode, referring to a potential discrimination issue, could constitute a severe violation of CONMEBOL statutory objectives, thus attracting in this way CONMEBOL jurisdiction to investigate and adjudicate the matter.
However, in such a situation of uncertainty, the FIFA Disciplinary Code offers the necessary solution. Whilst the Code firstly refers to the general rule according to which “Confederations, associations and other sports organisations are responsible for investigating, prosecuting and sanctioning conduct in their respective jurisdictions” (art. 30, par. 2), it also provides the key for solving delicate and sensible cases, such as the one under consideration.
In fact, art. 30 par. 6 provides that
“The FIFA judicial bodies reserve the right to investigate, prosecute and sanction serious infringements within the scope of application of this Code - in particular, doping, match-fixing and discrimination - that fall within the jurisdiction of confederations, associations or other sports organisations, if deemed appropriate in a specific case and if no formal investigation has been initiated by the competent confederation, member association or other sports organisation 90 days after the matter became known to FIFA, or if the relevant confederation, member association or sports organisation agrees with FIFA to confer the competence regarding the relevant matter on FIFA”.
In a case of potential discrimination like the present one and considering potential complaints from other associations not affiliated to CONMEBOL, such as the FFF, affiliated to UEFA, it appears, therefore, that FIFA is in the best position to entertain the matter, conduct the investigation and open disciplinary proceedings.
Unsurprisingly, various media outlets reported that FIFA last week confirmed being aware of the video circulating on social media and the incident involving Fernandez and other Argentinian players and that the matter is being looked into by the world governing body of football.
In this scenario, it will, therefore, be remitted to FIFA to investigate the matter in question and, eventually, evaluate the possible imposition of sanctions on the Argentinian players involved and/or the Argentinian Football Federation for strict liability.
The Author may be contacted by e-mail at ‘
