09.12.2020
Audun Ludvig Bollerud
Conclusion
The measures implemented by the authorities to restrict the agency of private individuals, including the Norwegian Football Federation (NFF), must be based on law. This basic principle of legality is enshrined in Article 113 of the Constitution. The provision reads:
“Infringement of the authorities against the individual must be founded
on the law.”
Such a restrictive measure as the one the men’s national football team has now been subject to should have a clear legal basis.
Our assessment is that NFF’s protocol for the trip to Romania lies within the rules set down in the COVID-19 Regulations. Accordingly, the national squad could have travelled to Romania without breaking the law. The Norwegian Ministry of Health and Care Services and Minister of Health and Care Services, Bent Høie, therefore lack the legal and regulatory basis for refusing to allow the men’s national team to leave Norway to play international matches in Romania and Austria. Despite the lack of legal basis, the Minister advised against the men’s national team travelling to Romania on 14 November 2020.
Read the article (Norwegian): https://www.dagbladet.no/sport/beskyldes-for-maktmisbruk/73069978
Background
A player on the men’s national team tested positive for COVID-19 during the national team’s gathering. The positive test means that anyone who has been in close contact with the player must quarantine, cf. Section 3 of the COVID-19 Regulations.
The Norwegian Football Federation (“NFF”) explained its assessment of the rules in a letter to the Norwegian Ministry of Health and Care Services on 14 November 2020. The NFF conclusions are that travel outside of Norway can take place pursuant to the COVID-19 regulations and its quarantine provisions.
On the TV2 News during the evening of 14 November 2020, the Minister of Health and Care Services, Bent Høie, strongly recommended that the men’s national team cancel the trip. This is because he feels that the men’s national team would be in a legal grey area if it travelled out of Norway.
The purpose of this note is to shed light on the rules applicable to international travel and whether there is a legal grey area as the Minister seems to think.
Ambit of the COVID-19 Regulations
The COVID-19 Regulations apply to people who are in Norway. This follows directly from the wording of Section 2 of the Regulations and the general rules concerning the jurisdiction of states. Accordingly, the consequence is that the men’s national football team cannot violate the regulations abroad, only in Norway.
Outside of the borders of Norway, infection control will be governed by the rules applicable to the state in question and not the Norwegian COVID-19 Regulations.
For the men’s national team, the question is then whether it is possible to travel out of Norway without violating the regulations. As soon as the national team has left Norway, they will need to comply with the rules applicable to the country they are now in.
Close contact and quarantine
Pursuant to Section 4(b) of the COVID-19 Regulations, people who have been in close contact with an infected person less than 48 hours before the infected person developed initial symptoms must quarantine.
Close contact is defined in Section 3 of the regulations. The following three criteria are stated here:
- Person who has been less than two metres away from the infected person for more than 15 minutes
- Person who has had direct contact with the infected person
- Person who has had direct contact with the infected person’s secretions
NFF has not conducted any further investigations as to which players or coaching staff meet any of the three criteria. In the federation’s letter dated 14 November 2020 it is, for precautionary reasons, assumed that everyone in the national squad has been in close contact with the infected person.
It is obvious that the NFF could have conducted a more detailed assessment of each participant in the Norwegian squad. However, in line with NFF’s assumptions, it is assumed that everyone in the squad was in close contact with the infected person.
Based on this, it is clear that everyone in the national squad must quarantine, cf. Section 5 of the COVID-19 Regulations. The question is whether, and if so how, such quarantine can be combined with travel outside of Norway.
Requirements concerning those who must quarantine
Location, working hours and place of work
Section 5a of the COVID-19 Regulations stipulates the requirements applicable to a person who is quarantining. The basic requirement is that the individual “must stay at their own home or another suitable location”.
It is clear that no one in the Norwegian squad is currently at their own home. This is because the squad has gathered in connection with the three scheduled international matches. If we assume that the hotel where the national squad is now staying is “another suitable location”, the requirements have generally been met. But the fact is that the entire squad must now be considered to be at work, i.e. at a place of work, pursuant to the wording of the regulations. This follows from the definitions in Section 3(2) of the regulations, which read:
“Working hours refers to the time during which a person is at work or travelling between work and their place of residence or another permanent residence”.
The fact that the national squad is at work has implications on where they can stay. The reason for this is Section 5(1), second paragraph. The provision reads:
“Those who are in quarantine cannot be at a place of work where others are also present, …”
Based on the wording, this provision means that the men’s national team must interrupt its stay or travel outside of Norway, i.e. the area to which the regulations apply, in order to avoid violating the rules concerning quarantine. Continuing to gather, i.e. working in Norway, appears incompatible with the regulations.
Mode of travel
If quarantining, the main rule is that there is a prohibition against the use of public transport. This follows from Section 5(1), final paragraph of the COVID-19 Regulations. Nevertheless, there is no prohibition against travelling by private modes of transport.
Public transport is transport that is available to everyone. The counterpart to public transport is private transport.
The NFF letter dated 14 November 2020 states that the federation had hired a private plane for transport out of Norway. A private plane is a mode of transport that is in no way accessible to everyone. The transport scheduled by NFF must therefore be considered private.
Based on this, it is clear that the transport scheduled by the NFF for the men’s national team complied with the COVID-19 Regulations. In other words, there is nothing associated with the mode of transport itself that prevented the national squad from travelling out of Norway on the chartered plane.
The question now is whether the flight could have been carried out without violating other rules set down in the regulations.
The ability to move around during quarantine
You are allowed to move around outside of your home/the place you are staying even if you are quarantined. The requirement is that you avoid close contact with anyone other than those you live with, cf. Section 5(1) of the regulations.
The definition of the term “close contact” can, as noted above, be found in Section 3 of the regulations. This defines what must be considered “close contact” in this context.
In the letter from the NFF, dated 14 November 2020, a detailed explanation was provided as to how the scheduled travel had been intended to be carried out without any of the squad members coming into close contact. A doctor with a particular responsibility for infection control would ensure compliance with the travel protocol.
Based on this, we can conclude that the scheduled transport from Norway to Romania complied with the COVID-19 Regulations.
