Closure of the Stadium - Legal Basis
From the report on stadium safety in the Ekstraklasa published by the Polish Football Association PZPN, it appears that in the concluded 2013/2014 season, during which 296 matches were played, there were 195 incidents related to offensive chants, and during 68 matches pyrotechnic devices were used. One of the instruments aimed at ensuring safety in stadiums is the closure of the stadium or its designated part to the public. This article will focus on the legal basis for stadium closures.
Readers of this blog have probably already noticed that sports law is mainly based on internal regulations of sports associations. The only strictly sports-related act passed by the Sejm (Polish parliament) is the Sports Law. All other regulations are either derived from other general provisions or result from internal law created by Polish sports associations or, in the case of matters concerning sports associations from various countries, by international sports federations.
Regarding the issue of "stadium closures," we are dealing with a certain duality, as both the Act on Safety of Mass Events 1) and the internal regulations of the associations define the grounds and authorities authorized to decide on conducting a match without the participation of the audience.
The provisions u.b.i.m. define the concepts of a mass sports event and a football match. In simplified terms, a mass sports event is a mass event organized at a stadium or another non-building facility, where the number of places provided by the organizer for the audience is not less than 1,000 (also in another area enabling the event), and in the case of a hall or a similar building, 300 people2)I will skip at this point the considerations on the incorrect construction of the definition of a mass event and a mass sports event. A football match is a mass sports event aimed at competition in the discipline of football. Why was a separate definition of a football match decided? Because additional security requirements were imposed on the organizer of a football match, which is a consequence of the specifics of football matches and the fan environment. The authority issuing a permit for the organization of a mass event is the mayor or president of the city competent for the place of the mass event. However, considering the topic of this article, we will focus on the competences of the voivode.
Art. 34 u.b.i.m. provides that the voivode (local authority) may:
1) prohibit the conduct of a mass event with the participation of the public in the entire facility or in its designated sectors,
2) introduce, for a specified or unspecified period, a ban on the organizer conducting mass events in the voivodeship or its part
– if, in connection with the planned or conducted mass event, a negative assessment of public order and safety is made.
The mentioned provision is very broad and leaves a huge decision-making discretion to the administrative authority. It is noteworthy that the decision to close the stadium or its part, or the ban imposed on the organizer may be made both before the start and after the end of the mass event, as indicated by the phrase "in connection with the planned or conducted mass event". Therefore, the authority granted to voivodes has both a preventive character, if a negative assessment of the state of public order and safety was made during the preparations for the organization of a mass event, and a repressive one, if it is related to the conducted event. The latter case most often concerns events of a cyclical nature, when the organization of the event does not have a single character from the outset. For example, a sports team that has a predetermined schedule of matches and is the organizer of a sports event may be punished by a ban on conducting the event with the participation of the public. It should be noted that the provision allows for tailoring the penalty to the offense.
The authority can, therefore, exclude the entire facility, its part (e.g., stands, sector), as well as prohibit the organizer from conducting mass events at all for a specified or unspecified period. What are the grounds, however, for a negative assessment of public order and safety? Certainly, the statement of gross violations of the facility regulations, mass event regulations, or statutory provisions. When it comes to statutory provisions, for example, one can point to Art. 8 u.b.i.m. prohibiting bringing to a mass event and possessing by persons participating in it weapons or other dangerous objects, explosives, pyrotechnic materials, fire hazardous materials, alcoholic beverages, intoxicants, or psychotropic substances. It is important, however, that even this negative assessment of public order and safety does not necessarily lead to the imposition of bans mentioned above. The voivode "may" impose a penalty, and this determination indicates the facultative nature of the ban.
However, it cannot be agreed that the authority has full discretion in this matter. Imposing a ban should occur when the authority makes a negative assessment of public order and safety at a mass event and is convinced that, due to the scale of the violation, it is appropriate and adequate to impose a ban, and this conviction is justified in the circumstances of the case. It should be borne in mind that the decision is addressed to the event organizer, so the issue of the real influence of the organizer on the events that form the basis for issuing a negative assessment should not be overlooked. Analyzing the jurisprudence of administrative courts, it should be indicated that the adjudicating bodies take into account such circumstances as: aggressive behavior of fans, violence against fans of the opposing team and third parties (persons working at the stadium), lighting flares, or the previous behaviors of fan groups. For example, a decision from May 2011 of the Mazowieckie Voivode prohibiting Legia Warszawa from organizing a mass event with the participation of the public (upheld in all instances) was based on the request and opinion of the Police Commander, which pointed to repeated cases of bringing pyrotechnic devices and the development of the so-called "sectorization" to hinder the identification of perpetrators and the movement of fans in a way that hinders their identification. The voivode's decision can be appealed to the minister responsible for internal affairs, and since the decision is issued in the administrative procedure, an appeal to the voivodeship administrative court and a possible cassation appeal to the Supreme Administrative Court are available. However, an appeal against the decision does not suspend its execution.
Regardless of the voivode's decision, the decision to hold a match or other sports competition without the participation of the audience may be made by the relevant sports association if the internal regulations provide for such a possibility. For example, in the disciplinary regulations of the PZPN, penalties for playing a match without the participation of the audience are provided, as well as further going to ban playing within a specified time 3)until a year or a specified number of matches4)from 1-5 matches with the participation of the audience in the entire or part of the sports facility in the town where the club is based. The club may be penalized with one of the aforementioned penalties in the following cases:
- lack of proper order or safety at the stadium before, during, or after the matches (art. 64),
- presenting content of a contemptuous, blatantly unethical nature, praising terrorism, crime, violence, referring to criminal ideologies, political content, discriminatory content, especially referring to race, skin color, language, religion, or origin, shouting slogans, or committing another act of such nature during the match or immediately before or after the match (art. 67),
- using threats, violence, or violating the bodily integrity of a referee or another person in connection with a football match or activity in the PZPN or its member organizations, especially to hinder or prevent actions, if at least two players or club officials are involved in such behavior (art. 72).
An analysis of the content of Art. 64 of the Disciplinary Regulations suggests that the grounds for imposing a penalty in the case of a lack of proper order at the stadium during or after the matches will be very similar, if not identical, to the grounds for the decision to close the stadium by the voivode. The severe penalization of behaviors described in Art. 67 is a consequence of the policies of football federations condemning all forms of discrimination.
The question arises, who imposes the penalty of playing a match without the participation of the audience? The competence of the authorities is regulated by Art. 121 of the Regulations, granting competence to the appropriate disciplinary committee depending on the level of the competition at which the match was played, during which the above-mentioned violations occurred. Importantly, in relation to matches of the Ekstraklasa, disciplinary penalties are decided by the Ekstraklasa authority - the league committee. It should be emphasized, however, that there is a certain difference between the bans issued by the voivode or the association or league authority. The voivode imposes a penalty on the organizer, the entity organizing the event. The association or league authorities may, however, impose a penalty on the visiting club. Thus, Art. 64(1) of the PZPN Regulations provides that for the lack of order or safety during the departure of an organized group of fans to a football match, a penalty of a ban on organized fan group departures to football matches is imposed on the visiting team's club. Similarly, in the case of violations referred to in Art. 67 and 72, the sanction will be imposed on the football club whose fans, players, or officials committed the penalized behavior. However, with the reservation that in the case of the inability to identify the fans committing the offenses described in the Regulations, the host club of the match is subject to the penalty. So, one can imagine a hypothetical situation where, due to the behavior of the visiting fans, the match organizer, i.e., the home team, is penalized by the voivode with a ban on holding the match with the participation of the audience, and by the decision of the league committee, the visiting club is penalized with playing the match without the participation of the audience.
Obviously, in the case of international matches, depending on the nature of the competition, the provisions of FIFA, UEFA, or another football federation will apply accordingly. The recent Europa League match between Legia Warsaw and Ajax Amsterdam was played without the participation of the audience, which was a consequence of the behavior of Legia Warsaw fans during the away match against Lokeren. UEFA regulations require the club to be responsible for the behavior of its fans, so it did not matter that the match where the inappropriate behavior occurred took place in Belgium.
Even in sports unrelated to any improper fan behavior, such as volleyball, disciplinary regulations have been introduced that deprive fans of the possibility of participating in a sports event. Thus, in the Regulations of professional competition in volleyball prepared in connection with the professional league competition - the Professional Volleyball League S. A., a penalty of a temporary ban on playing matches has been introduced in cases where the event organizer is unable to ensure safety and order during the matches.
The topic of stadium closures arouses great emotions in the football community. It is a fact that the consequences of the behavior of certain individuals are borne by all fans and the football club (including financial losses due to the lack of ticket revenue), and the provision provides for a kind of collective responsibility, which is always hurtful. On the other hand, it should be remembered that tolerance for dangerous behaviors in large human gatherings can be tragic in its consequences.
Of course, efforts should be made to improve security systems allowing for the identification of perpetrators, but should the provision granting voivodes the right to close stadiums in some way be modified? In my opinion, a potential amendment introducing a casuistic enumeration of which offenses should result in the closure of a stadium or another sports facility would not lead to the desired results . In support of these words, one can cite the legal provisions quoted in this article created by sports associations, which use broad concepts of order and safety.