Revue - Les Cahiers de l'Arbitrage N°1 - 2024 - 235

LES ÉVOLUTIONS JURISPRUDENTIELLES ACTUELLES DE L'ARBITRAGE EN MATIÈRE SPORTIVE
Luis Rubiales appealed the decision. On 16 January 2024, a hearing was held
by the FIFA Appeal Committee at the Home of FIFA in Zurich. 18
What were Mr. Rubiales main arguments of defence? With regard to the
" genitals incident " , Mr. Rubiales contended that the gesture was " unfortunate " ,
but that the " highly biased media judgment completely disregarded the context
in which it occurred " . Mr. Rubiales stressed that this gesture means nothing more
than " olé tus huevos " (olé your balls), a typical and widespread expression in
Spain to tell someone that they have done something well. He also stressed that
this gesture was directed solely and exclusively at Mr. Vilda, the coach of the team,
and that in no way was it intended to disrespect anyone or discredit football and/
or FIFA. 19
As to the " carrying incident " , Mr. Rubiales argued that the incident took
place 45 minutes after the end of the game, when the stadium was empty, as an
expression of joy, while Ms. Castillo at no point asked him to put her down. 20
As
for the " pecking incident " , Mr. Rubiales went on to state that " it is quite surprising
that serious disciplinary consequences arise from a peck on the cheek, as it is not
only a worldwide sign of appreciation, but also a form of greeting between men
and women in the Spanish culture " . 21
Finally, in relation to the " kissing incident " ,
Mr. Rubiales insisted that he had asked her " can I kiss you " and she had said " pues
vale " (go on then). Ms. Hermoso therefore consented to the kiss. Mr. Rubiales
explained that a TV news program conducted a lip-reading analysis which confirms
that he had asked permission to kiss Ms. Hermoso. In addition, two videos were
recorded in the dressing room after the match showing the players making fun of
this situation, so she did not appear to be uncomfortable or upset. 22
As for the three-year sanction, Mr. Rubiales stated that, from a disciplinary
point of view, it was absolutely disproportionate to compare the carrying incident,
the genitals incident, and the peck incident with the kiss incident. He further stated
that the only reason for considering the four incidents together was to justify a
longer suspension, because if only the kiss incident had occurred, the banning
sanction would certainly not have been three years, but less. 23
The incidents should
have been considered individually. Mr. Rubiales considered that the sanction was
grossly disproportionate when comparing his case with that of others. 24
Therefore,
Mr. Rubiales primarily requested the Appeal Committee to annul the appealed
decision. In the alternative, to amend the sanction imposed in accordance with the
principle of proportionality. 25
Ms. Jennifer Hermoso published a statement on social media, which she
sent to the FIFA Disciplinary Committee during the first instance proceedings. In
that statement, Ms. Hermoso confirmed that the conversation referred to by Mr.
Rubiales never took place and that his kiss was far from consensual. Ms. Hermoso
explained that the situation shocked her due to the context of the celebration
18. Decision of the FIFA Appeal Committee passed on 16 January 2023, see par. 28; reasoned
decision available here.
19. Id., par. 37-39.
20. Id., par. 45.
21. Id., par. 47.
22. Id., par. 49.
23. Id., par. 81-82.
24. Id., par. 84-91.
25. Id., par. 93.
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