For a lawyer steeped in the long evolution of human rights, the All England Lawn Tennis Club’s decision to ban Russian and Belarusian players from competing at Wimbledon this year summons up a dark past.
Wimbledon officials have said that a “government directive” left them with “no viable alternative” but to ban Russian and Belarusian players from this year’s contest, which starts on June 27.
Players would reportedly only be allowed to play if they submitted written confirmation that they are against the war or, at least, neutral towards the conflict.
In contrast, so far, Roland Garros organisers of the French Open have said that Russian and Belarusian players will be allowed to compete, although likely under a neutral flag and with no national anthems played.
The UK’s decision unhappily shows once again the disposition to vilify, demonise – and in this case, ostracise – anyone related, no matter how remotely, to the reputed enemy during time of war.
Discrimination on the basis of nationality and national origin was condemned in the 1948 Universal Declaration of Human Rights, and was made illegal in the European Convention on Human Rights.
The UK’s move therefore raises two fundamental legal issues: Does the ban constitute discrimination on the basis of national origin? Does the ban impinge on a Russian player’s freedom of expression?
The second question may not be obvious, but courts broadly interpret what falls within the scope of free speech. It is not limited to written or verbal speech. It includes physical acts, such as demonstrations, strikes by employees, or burning a symbol, such as a flag.
Courts want to know if the act constitutes a clear and present danger. Is the activity likely to incite lawless action? Is it the intent to cause lawless behaviour?
Clearly Russian and Belarusian tennis players in no conceivable way present a clear and present danger to society. They neither intend to provoke illegal activity nor do they incite it, nor is illegal activity likely to ensue because of their participation in a tennis tournament.
Professional tennis is their chief means of expression.
For this lawyer, the decision by the All England Lawn Tennis Club invokes what is possibly the most infamous case in American legal history: Korematsu v. United States.
The case of Korematsu
In 1942, the US Secretary of War asked President Roosevelt to order the arrest of all American citizens whose national origin was Japanese. In the space of one day, more than 100,000 Americans had to sell everything they owned, and were deported to what were in effect concentration camps.
They lost everything. No evidence was ever submitted that those citizens were not loyal. It was a decision based on pure emotion that caused enormous suffering.
Fred Korematsu, an American of Japanese origin, failed to comply. He was arrested and convicted, but contested his conviction on the basis that it was discriminatory.
In October 1944, Fred Korematsu’s case was argued before the US Supreme Court, and by a vote of six to three, the court upheld the conviction. Its opinion was written by Justice Hugo Black.
Despite being perhaps the most liberal justice on the court, he wrote an opinion upholding blatant racial and national origin discrimination.
In 1962, I spoke to Justice Black at a small seminar on constitutional litigation at Virginia Law School. I asked him if he had changed his mind about his opinion on Korematsu.
Without hesitation, he answered in his soft Alabama accent that he had not.
Despite his Deep South origins, Black opposed racial and national origin discrimination in all of his subsequent decisions but for him, Roosevelt had made a decision in a time of war. As a judge, it was not his role to second guess the president, he said.
It took 74 years, roughly three generations, before Chief Justice Roberts, in 2018, wrote that “[the] Korematsu [judgement] was gravely wrong the day it was decided, [and] has been overruled in the court of history….”
Although I am a fan of Justice Black, I believe that history has rightly judged that he made the wrong decision in this case.
Emotionally-based and unjustified
The decision to ban Russian tennis players from competing at Wimbledon is a far cry from the decision made by President Roosevelt when the United States was at war. England is not at war with Russia.
But while the individual consequences of excluding Russians from competing at Wimbledon and other English tournaments are not as dramatic as the consequences suffered during World War Two by Americans of Japanese origin, the decision does impact the right of those players to practise their profession and to earn income.
It is just as emotionally-based, and just as unjustified, as the Korematsu decision. And like that decision, there exists not a shred of evidence that Russian participation at Wimbledon will somehow be a boon to Russia and a detriment to Ukraine.
Although the aid the UK and other countries are giving Ukraine has consequences for the Russian people, that is not its aim. The Russian people are neither the enemy of the UK nor of Ukraine.
Both Russian and Belarus tennis players, who would otherwise be eligible to play at Wimbledon and other UK tournaments, are now denied that possibility solely on the basis of their national origin and nationality.
They have a legal claim against both the All-England Club and the Lawn Tennis Association. Whether they can obtain redress in time to play at Wimbledon and what their damages might be if they cannot, are more difficult questions.
Ronald Sokol is a member of the bar in the United States, France, and England. He is the authorof Federal Habeas Corpus, Justice After Darwin, and more recently the Virginia Law Schoolonline publication ofA Transatlantic Conversation.
