by
Lars
Baron/Getty
Images)
When Ukrainian
skeleton
athlete
Vladyslav
Heraskevych
was
pulled
from
competition at
the
Milan-Cortina
Games
for
refusing
to
remove
a
helmet
honoring
more
than
20
Ukrainian
athletes
and
coaches
killed
in
the
war
with
Russia,
the
International
Olympic
Committee
described
its
decision
as
one
made
“with
regret.”
The
IOC
did
not
dispute
the
substance
of
his
message.
It
disputed
the
timing
and
location.
Heraskevych
was
permitted
to
wear
the
helmet
in
training.
He
was
offered
the
opportunity
to
display
it
off
the
ice.
He
was
even
offered
the
compromise
of
a
black
armband.
What
he
was
not
permitted
to
do
was
wear
it
during
official
competition.
According
to
the
IOC
and
the
International
Bobsleigh
and
Skeleton
Federation,
that
violated
the
Olympic
Charter
and
athlete
expression
guidelines
prohibiting
political
statements
on
the
field
of
play.
The
distinction
is
narrow,
but
legally
significant.
And
it
is
one
FIFA
would
be
wise
to
examine
closely
as
FIFA
World
Cup
26
approaches.
The
Field-of-Play
Doctrine
International
sport
relies
on
a
regulatory
premise
that
competition
must
remain
“neutral.”
The
IOC’s
Rule
50
framework
and
FIFA’s
regulations
prohibiting
political,
religious,
or
personal
statements
on
equipment
or
apparel
during
matches
reflect
that
principle.
Athletes
and
federations
participate
subject
to
contractual
agreement
with
governing
bodies.
Those
agreements
incorporate
expression
restrictions.
From
a
legal
standpoint,
sport
federations
generally
retain
authority
to
enforce
those
rules,
and
the
Court
of
Arbitration
for
Sport
has
historically
afforded
substantial
deference
to
governing
bodies
in
matters
of
competition
governance,
provided
the
regulations
are
clear
and
applied
consistently.
The
Heraskevych
decision
illustrates
how
that
authority
operates
in
practice.
The
IOC
drew
a
bright
line
between
training
and
competition.
Once
the
race
began,
symbolic
expression
became
part
of
the
official
sporting
spectacle,
and
therefore
subject
to
restriction.
The
legal
risk
for
governing
bodies
does
not
arise
from
the
existence
of
such
rules.
It
arises
from
their
application.
Selective
Enforcement
and
Discrimination
Claims
Heraskevych
publicly
suggested
that
other
athletes
had
expressed
views
without
facing
similar
consequences.
Whether
that
claim
has
merit
is
less
important
than
the
structural
vulnerability
it
highlights.
Expression
regulations
become
legally
fraught
when
enforcement
appears
uneven.
A
rule
that
is
facially
neutral
but
applied
inconsistently
can
invite
challenges
grounded
in
procedural
fairness,
discrimination
principles,
or
arbitrary
enforcement.
Even
within
the
deferential
framework
of
CAS
jurisprudence,
consistency
is
critical.
Now
consider
FIFA
World
Cup
26.
The
tournament
will
be
hosted
across
the
United
States,
Canada,
and
Mexico,
in
a
geopolitical
environment
marked
by
active
armed
conflicts,
polarized
domestic
politics,
and
heightened
athlete
activism.
It
is
not
difficult
to
imagine
scenarios
involving
wristbands
worn
in
warmups,
messaging
on
training
shirts,
symbolic
armbands,
or
even
visible
tattoos
revealed
in
celebration.
FIFA’s
regulations
prohibit
political
statements
during
official
matches.
But
disputes
rarely
arise
in
the
abstract.
They
arise
in
moments
(sometimes
minutes
before
kickoff)
when
enforcement
decisions
carry
immediate
competitive
consequences.
The
Timing
Problem
in
Global
Sport
One
of
the
most
underappreciated
legal
features
of
these
disputes
is
remedial
irreversibility.
Heraskevych
indicated
he
would
appeal
to
CAS.
But
the
race
proceeded.
Medals
were
decided.
Even
if
an
appellate
body
were
to
find
error,
the
competitive
opportunity
cannot
realistically
be
restored.
The
same
would
apply
at
a
World
Cup.
If
a
player
is
suspended
or
removed
from
a
match
for
refusing
to
comply
with
an
expression
directive,
any
subsequent
appeal
may
offer
declaratory
relief
or
financial
remedy.
It
will
not
replay
the
game.
That
asymmetry
increases
the
stakes
of
pre-competition
enforcement
decisions
and
places
extraordinary
pressure
on
governing
bodies
to
ensure
that
policies
are
precise,
transparent,
and
consistently
applied.
Commercial
and
Security
Overlay
FIFA World
Cup
26
will
be
among
the
largest
commercial
sporting
enterprises
in
history.
FIFA
must
manage
sponsor
obligations,
broadcast
rights,
host
government
relationships,
and
security
considerations
across
three
jurisdictions.
Sponsors
demand
brand
control.
Host
governments
demand
stability.
FIFA
demands
regulatory
uniformity.
In
that
environment,
governing
bodies
predictably
err
toward
restriction
when
symbolic
acts
are
perceived
as
endorsing
or
condemning
geopolitical
positions.
Yet
the
more
international
sport
markets
itself
as
a
platform
for
shared
values,
unity,
and
global
solidarity,
the
more
difficult
it
becomes
to
justify
rigid
enforcement
distinctions
that
appear
technical
rather
than
principled.
The
IOC’s
position
in
Cortina
rested
on
the
premise
that
the
helmet’s
visibility
during
competition
transformed
remembrance
into
prohibited
political
expression.
That
line-drawing
exercise
may
become
increasingly
difficult
in
sports
where
cameras
capture
every
detail,
from
wristbands
to
tattoos.
Preparing
for
2026
The
Olympic
helmet
controversy
should
not
be
viewed
as
an
isolated
dispute.
It
is
a
preview.
FIFA
World
Cup
26
will
feature
players
from
nations
currently
engaged
in
active
conflicts.
Some
will
have
lost
family
members.
Some
will
face
domestic
political
pressures
at
home.
Others
may
seek
to
distance
themselves
from
the
actions
of
their
governments.
The
legal
question
is
not
whether
FIFA
has
authority
to
regulate
expression.
It
does.
The
question
is
whether
it
has
constructed
a
framework
that
is
sufficiently
clear,
consistently
enforced,
and
capable
of
resolving
disputes
quickly
enough
to
prevent
irreparable
competitive
harm.
If
a
symbolic
item
worn
during
training
is
permitted
but
prohibited
during
match
play,
FIFA
must
be
prepared
to
articulate
not
just
the
rule,
but
the
rationale.
And
it
must
apply
that
rationale
uniformly.
The
IOC
described
its
decision
as
one
made
with
regret.
That
acknowledgment
reflects
the
human
dimension
of
these
controversies.
But
regret
does
not
mitigate
legal
exposure
if
enforcement
appears
arbitrary.
As
the
world’s
most
watched
tournament
approaches,
FIFA
should
treat
the
events
in
Cortina
not
as
an
Olympic
issue,
but
as
an
early
warning.
Because
when
the
whistle
blows
in
2026,
neutrality
will
not
be
a
philosophical
aspiration.
It
will
be
a
regulatory
decision
with
global
consequences.
Michael
J.
Epstein,
a
Harvard
Law
School
graduate,
is
a
trial
lawyer
and
managing
partner
of The
Epstein
Law
Firm,
P.A., a
law
firm
based
in
New
Jersey.