Asser International Sports Law Blog

We, the undersigned legal experts in human rights and sports, issue this statement out of urgent concern about the regressive move toward genetic testing as a precondition of participation in women’s sport. Such eligibility rules, which have already been adopted by several major International Federations—including World Athletics, World Boxing, World Aquatics, and the International Ski and Snowboard Federation—not only conflict with the IOC’s existing guidelines on the matter, but also violate domestic and international laws that protect human rights and regulate the use of genetic testing and genetic information. 

Violations of the IOC Framework

The IOC’s Framework on fairness, inclusion and non-discrimination on the basis of gender identity and sex variationsoutlines fundamental principles to be followed within the Olympic Movement when defining eligibility criteria for the men’s and women’s categories of competition. According to the Framework, any such eligibility criteria should be aimed at ensuring that no athlete has an unfair and disproportionate competitive advantage or at preventing a risk to the physical safety of other athletes. Under the Framework, such an advantage or risk cannot be presumed based on an athlete’s sex variations, physical appearance, or transgender status. It must instead be established based on evidence in the form of robust and peer reviewed research. 

In particular, such evidence should be “based on data collected from a demographic group that is consistent in gender and athletic engagement with the group that the eligibility criteria aim to regulate” and must demonstrate “disproportionate competitive advantage and/or unpreventable risk exists for the specific sport, discipline and event that the eligibility criteria aim to regulate.” Contrary to this evidence-based approach, exclusion based on the presence of the SRY gene constitutes a categorical ban based on a single biological marker, rather than on peer-reviewed research demonstrating that transgender athletes and/or athletes with sex variations have a disproportionate competitive advantage or pose an unpreventable safety risk in specific sporting disciplines.

Moreover, the IOC Framework advises International Federations to prioritize athletes’ health, wellbeing, bodily autonomy, and privacy. Current genetic sex testing rules fail to do so, in violation of numerous domestic and international laws, which we urgently draw attention to below.

Violations of national, regional, and international human rights laws

As several Special Procedures of the UN Human Rights Council have observed, genetic sex testing as a condition of eligibility for women’s sport infringes on athletes’ internationally recognized rights to equality, bodily and psychological integrity, and privacy. 

Further, the IOC, along with the many International Federations based in Europe, must comply with the European Convention on Human Rights. Indeed, the European Court of Human Rights has recognized that the failure of a sport governing body to respect human rights may engage the responsibility of Switzerland under the Convention and, further, that the Swiss Federal Supreme Court must subject female eligibility rules in sport to particularly rigorous review given the seriousness of the personal rights at issue, including privacy, bodily and psychological integrity, economic freedom, and human dignity. 

We consider that mandatory genetic sex testing, and the exclusion of women athletes on this basis, violates Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the European Convention. Such violations can only be justified if the eligibility rules are reasonable, necessary, and proportionate, which International Federations bear the burden of proving and which they are currently unable to do. As the European Court of Human Rights recently recognized, the harms of sex testing include the inevitable disclosure of certain athletes’ private and confidential medical information, the potential loss of their livelihoods, and a range of other serious harms. In our view, these consequences—and particularly the social exclusion, psychological distress, physical harm, and material loss that accompany them—cannot be considered reasonable and proportionate to the aim pursued. This is particularly so given the absence of conclusive scientific evidence demonstrating that transgender women athletes or athletes with sex variations have a systematic advantage over other women athletes. 

The exclusion of athletes on the basis of genetic sex testing likewise violates domestic laws, as a Belgian court recently concluded, finding that international cycling regulations barring transgender women were discriminatory, lacking a sound scientific basis, and disproportionate. 

Violations of laws regulating genetic testing and genetic data

Genetic sex testing as a condition of participation in sport also violates numerous national, regional, and international laws, which strictly circumscribe the use of genetic testing and genetic data. 

First, the Convention on Human Rights and Biomedicine, along with the domestic laws of many jurisdictions, prohibit genetic testing unless it serves a health-related purpose, which sex testing rules clearly do not. Some domestic laws place additional restrictions on the range of permissible medical purposes when it comes to minors, however International Federations apply genetic sex testing rules indiscriminately to athletes of all ages. Because of such domestic legal restrictions, athletes in some countries have been pushed to access genetic testing abroad, in less protective jurisdictions.

Second, across jurisdictions, free and informed consent is a fundamental precondition for genetic testing. Not only do individuals below a certain age lack the legal capacity to consent, the consent of an athlete of any age cannot be freely given when it is a condition of sports eligibility. Illustrating this legal principle, the International Declaration on Human Genetic Data specifies that consent to genetic testing is only valid if it is not induced by financial or other personal gain, yet sports eligibility rules do exactly that. While many jurisdictions require the provision of non-directive genetic counselling prior to any testing, this safeguard is nullified by the directive nature of sports eligibility rules. 

Third, domestic and international laws prohibit discrimination based on genetic characteristics, as well as the use of genetic data in ways that stigmatize individuals or groups. Yet genetic sex testing rules do so, first, by targeting only women athletes for testing, and second, by excluding those with a particular genetic trait, resulting in the further stigmatization and marginalization of transgender and intersex people, not only in sport but in society at large.

Fourth, in order to prevent such discrimination, certain jurisdictions specifically prohibit making genetic testing or disclosure of test results a condition of a contract and prohibit anyone other than medical practitioners or researchers, and particularly employers, from requesting or using genetic information. International Federations cannot circumvent these legal restrictions by outsourcing genetic testing to authorities at the national level.

Finally, privacy and data protection laws around the world, including the General Data Protection Regulation(GDPR) afford heightened protection to genetic information. The GDPR prohibits the processing of genetic data, except in very narrow circumstances, such as where the data subject gives explicit, voluntary and informed consent, or where the processing is necessary for and proportionate to reasons of substantial public interest set out in EU or member state law.  Such voluntary and informed consent does not exist for genetic sex testing as athletes are forced to grant consent under the threat of exclusion from sport, and often in circumstances where they are not knowledgeable about the risks of harm that might result from the data processing. There is also no EU or member state law that describes the purported aim of sex testing in sport as a substantial public interest and, even if there was, the data processing in pursuit of that aim would not be necessary and proportionate due to the absence of scientific evidence that women with the SRY gene have a competitive advantage over other women athletes and the significant harms to athletes that can result from genetic sex testing.

The processing of genetic data for sex testing may violate other data protection laws that have been recognized as providing an adequate level of protection similar to the GDPR, such as the data protection laws in Brazil, Canada, Japan, Switzerland and the United Kingdom.

Our Call

We call on the IOC, as it finalises the work to find a “consensus” to “protect the female category”, to reject mandatory genetic testing as a condition of eligibility. We call on International Federations that have already adopted such eligibility rules to withdraw them immediately. And we call on all sport governing bodies to recommit—in practice, not only in policy—to the principles of inclusion and non-discrimination that they have already affirmed.

If international sport governing bodies fail to do so, we call on National Federations to refuse to apply and implement international eligibility rules that violate their respective domestic laws and international legal obligations. Simultaneously, we call on states to urgently review the legality of mandatory genetic sex testing policies that are being applied to athletes and/or at competitions within their jurisdictions. 

We also call on athletes to challenge the national or regional implementation of mandatory genetic sex testing, demanded by the IOC or International Federations, before domestic courts, by invoking national or regional laws protecting human rights, prohibiting anti-discrimination, and regulating the use of genetic testing and genetic data. 

At the same time, we call on courts, particularly the Court of Arbitration for Sport, the Swiss Federal Supreme Court, and ultimately the European Court of Human Rights and the Court of Justice of the European Union, to uphold their duty to ensure a particularly rigorous review of the rules and decisions of the IOC and International Federations, which is compliant with European human rights law and public policy. 

Mandatory genetic sex testing is a stigmatizing and exclusionary policy that lacks democratic legitimacy, scientific grounding, and proportionality between its harms and its aims. It simply has no place in international sport if sport is to be respectful of the values of human dignity, inclusion, fairness, and non-discrimination.  

First signatories:

Dr. Antoine Duval, T.M.C. Asser Instituut, The Netherlands

Dr. Michele Krech, Toronto Metropolitan University, Canada 

Signatories

1.     Dr. Cem Abanazir, Manchester Metropolitan University, United Kingdom

2.     Rafia Akram, University of Pretoria, South Africa

3.     Dr. Shreya Atrey, University of Oxford, United Kingdom

4.     Francis Awaritefe, lawyer, Professional Footballers Australia (PFA), Australia

5.     Dr. Mathieu Le Bescond de Coatpont, Université de Lille, France

6.     Manon Beury, Geneva Graduate Institute of International and Development Studies, Switzerland

7.     Dr. Audrey Boisgontier, Paris Nanterre University, France

8.     Jensen Brehaut, Osgoode Hall Law School - York University, Canada

9.     Prof. Eva Brems, Ghent University, Belgium

10.  Prof. Erin Buzuvis, Western New England University School of Law, USA

11.  Dr Seamus Byrne, Manchester Law School, Manchester Metropolitan University, United Kingdom 

12.  Prof. Gillian Calder, University of Victoria, Faculty of Law, Canada

13.  Dr. Pieter Cannoot, Ghent University, Belgium

14.  Amritananda Chakravorty, Advocate, India

15.  Jonathan Cooper, University of Gloucestershire, United Kingdom 

16.  Prof. Sharon Cowan, University of Edinburgh, United Kingdom 

17.  Dr. Martine Dennie, University of Manitoba, Canada

18.  Moya Dodd, lawyer, Former Matilda (Australian Women’s Football Team), Australia

19.  Nikki Dryden, lawyer, The Right Collective, Australia

20.  Dr Eleanor Drywood, School of Law and Social Justice, University of Liverpool, United Kingdom

21.  Prof. Maria C Dugas, Schulich School of Law, Dalhousie University, Canada

22.  Prof. Ariel Dulitzky, University of Texas at Austin, School of Law, USA

23.  Dr. Hilary Findlay, Brock University (retired), Canada

24.  Deekshitha Ganesan, Human rights lawyer, Germany

25.  Dr. Ryan Gauthier, Thompson Rivers University

26.  Alexandra Gómez Bruinewoud, Director Legal at FIFPro, The Netherlands

27.  Kaushik Gupta, Senior Advocate High Court at Calcutta, India  

28.  Dr Matthew Harvey, Victoria University Melbourne, Australia

29.  Dina Francesca Haynes, Orville H. Schell, Jr. Center for International Human Rights and Yale University, USA

30.  Prof. Kristin Henrard, Brussels School of Governance, Free University Brussels, Belgium

31.  Dr. Daniela Heerdt, T.M.C. Asser Instituut, The Netherlands

32.  Tim Holden, Solicitor admitted in Australia, Australia

33.  Dr. Lena Holzer, University of Cambridge, United Kingdom

34.  Shubham Jain, University of Cambridge, United Kingdom

35.  Timothy Kajja, Advocate of the High Court of Uganda, Uganda

36.  Dr. Ido Katri, York Institute of Science and Technology, Canada

37.  Prof. Bruce Kidd, University of Toronto, Canada

38.  Prof. Jennifer Koshan, Faculty of Law, University of Calgary, Canada

39.  Prof. Mélanie Levy, Health Law Institute - Faculty of Law - University of Neuchâtel, Switzerland

40.  Marcus Mazzucco, University of Toronto, Canada

41.  Dr. Julie Mattiussi, Associate Professor, University of Strasbourg, France

42.  Pedro José Mercado Jaén, European University Instute, Italy

43.  Alice M. Miller, Global Health Justice Partnership of the Yale Law and Public Health Schools, Yale University, USA

44.  Bárbara Monzerrat Meré Carrión, Legal Counsel at FIFPro, The Netherlands

45.  Dr. Tomáš Morochovič, University of Edinburgh, United Kingdom

46.  Prof. Benjamin Moron-Puech, Université Lumière Lyon 2, France

47.  George Newhouse, Human rights lawyer, Australia

48.  Dr. Matt Nichol, Central Queensland University, Australia

49.  Khayran Noor, International Sports Lawyer, Kenya

50.  Dr Catherine Ordway, University of New South Wales, Australia

51.  Prof. David Pavot, Université de Sherbrooke, Canada

52.  Prof. Debra Parkes, Peter A. Allard School of Law, University of British Columbia, Canada

53.  Dr. Seema Patel, Nottingham Law School, University of Nottingham, United Kingdom 

54.  Prof. Carmen Pérez-González, Universidad Carlos III de Madrid, Spain

55.  Prof. Isabelle Rorive, Université Libre de Bruxelles, Belgium

56.  Mihir Samson, Advocate, India

57.  Dr. Yassine Sangare, King Stage Business School, United Kingdom

58.  Maya Satya Reddy, Former Professional Golfer, founder of the Harvard Law School LGBTQ+ Advocacy Clinic Sports Project, LGBTQ+ Sports Law and Policy Consultant (JD), USA

59.  Kate Scallion, Jones Emery LLP, Canada

60.  Dr. Bérénice K. Schramm, Galatasaray University, Turkey

61.  Jhuma Sen, Advocate, Calcutta High Court, India

62.  Dr. Faraz Shahlaei, LMU Loyola Law School, USA

63.  Dr. Maayan Sudai, University of Haifa, Israel

64.  Prof. Jessica Tueller, University of Oklahoma College of Law, USA

65.  Faranaaz Veriava, University of Pretoria, South Africa

66.  Prof. Ekaterina Yahyaoui Krivenko, University of Galway, Ireland

67.  Dr. Jan Zglinski, LSE Law School, United kingdom

68. Monique Hennessy, ANZLA, Australia

69. Indiradevi Kollipara, Sports and Gaming Lawyer, India

70. David Rutherford, Human rights lawyer, New Zealand 

71. Prof. Alberto Carrio Sampedro, Pompeu Fabra Universiry, Spain

72. Sam Chollet, PhD Candidate, Université de Lausanne, France/Switzerland

73. Daniel Cardona A, Sports lawyer, Colombia

74. Dr. Alice de Jonge, Monash University, InterAction for Health and Human Rights, Australia

75. Dr Aileen Kennedy, UTS Faculty of Law and InterAction for Health and Human Rights, Australia

76. Inês Espinhaço Gomes, Porto Faculty of Law, Universidade Católica Portuguesa, Portugal

77. Dr. Daniel Del Gobbo, Assistant Professor & Chair in Law, Gender, and Sexual Justice, University of Windsor Faculty of Law, Canada

78. Brendan Schwab, Professional Footballers Australia, Australia

79. Dr. Erin C. Tarver, Emory University, Oxford College, USA

80. Dr. Matteo Winkler, HEC Paris, France

81. Isabel Abella Ruiz de Mendoza, Abella Legal, Spain

82. Roland Sètondji Adjovi, UQAM, Canada

83. Prof. Dr. Peter W. Heermann, LL.M, University of Bayreuth, Germany

84. Andrei Kampff de Melo, Lei em Campo, Brazil

85. Megan L. Manion, Yale Law School, USA

86. Dr Andrea Cattaneo, Edge Hill University, United Kingdom

87. Prof. Alessandra Arcuri, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands

88. Gabriel Vieira Terenzi, Centro Universitário Toledo Wyden, Brazil

89. Heather Corkhill, Legal Director, Equality Australia, Australia

90. Carlos J. Zelada, Universidad del Pacífico, Peru

91. Louise Collard, Université du Québec à Trois-Rivières, Canada 

92. Prof. Sarah Joseph, Griffith University, Australia

93. Sven Demeulemeester, Partner, Atfield, Belgium

94. Andrea Florence, Lawyer, Executive Director, Sport & Rights Alliance, Brazil

95. Surbhi Kuwelker, Independent Legal Counsel, Doctoral Candidate, University of Neuchatel, Denmark

96. Prof. Pascal Borry, KU Leuven, Belgium 

97. Clément Lanier, Paris-Nanterre University, France

98. Prof. Machteld Vonk, Faculty of Law, Radboud University, The Netherlands

99. Shoichi Sugiyama, Field-R Law Office / Japan Safe Sport Project, Japan

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 

• Ariel Dulitzky (University of Texas)  

• Burak Gemalmaz (Istanbul University) 

• Pedro José Mercado Jaén (European University Institute) 

• Cathérine Van de Graaf (University of Cologne) 

• Seamus Byrne (Manchester Metropolitan University)  

• Layckan van Gensen (Stellenbosch University)  

• Jules Boykoff (Pacific University, Oregon) 

• Brendan Schwab(Schwab Legal) 

• Roddy Cairns (University of Strathclyde)  

• Katarina Pijetlovic (Catolica University)  

• Béatrice Martel (McGill University)  

• Marcus Mazzucco (University of Toronto)  

• Shubham Jain (Cambridge University)  

• Veronika Yefremova (Leiden University)  

• Sarah Carrick (Manchester Metropolitan University)  

• Miquel Aznar Company (Universitat de València)  

• Niyati Pandey (Gujarat National Law University) 

• Tarun Tarun (Gujarat National Law University) 

• Khalida Popal (Afghan National Team) 

Register HERE

Editor's note: Nicholas McGeehan is co-director of human rights research and advocacy group FairSquare, which works among other things on the nexus between sport and authoritarianism. He is a former senior researcher at Human Rights Watch and holds a PhD in international law from the European University Institute in Florence.

Boycotts, divestments and sanctions are each controversial and contentious in their own right, but when combined under the right conditions, they have explosive potential. BBC football presenter Gary Lineker found this out to his cost when he retweeted a call from Palestine’s BDS movement to suspend Israel from FIFA and the International Olympic Committee (IOC)  until such time the Israeli state ends what they called “the crime of genocide it is perpetrating in Gaza” and its occupation of Palestinian territory. Lineker quickly deleted his retweet but not before the UK’s most popular right-wing tabloid newspaper, The Daily Mail, spotted it and renewed their fulminating campaign against Lineker’s support for political causes that run contrary to the Mail’s editorial positions. The Daily Mail does not oppose sporting boycotts, in fact judging from an article by its football columnist, Martin Samuel, it was an ardent supporter of Russia’s ejection from European football in the aftermath of its invasion of Ukraine. “Why should Russian football get to be part of the continent in which it has murdered innocents?,” asked Samuel  and in that regard he was not alone and was echoing views heard across the political divide in the west at the time. 

The west continues to boycott Russia, its companies have divested from Russia, and its governments are sanctioning Russia. This includes in the sporting arena where nobody batted an eyelid when Russian football teams were excluded from FIFA and UEFA competition, and its athletes excluded from IOC competition.  So it seems obvious that it  is not so much BDS tactics that offend people in certain quarters, but rather their target. Russia can be BDS’d until the cows come home, but BDS’ing Israel is beyond the pale. You can see how it might be hard to explain to a child.

Through an examination of the widely divergent responses to Russia’s actions in Ukraine and Israel’s actions in Gaza, this piece argues that FIFA and the IOC have aligned themselves with the political positions of the countries of the global north. With reference to previous sporting boycotts, it demonstrates how an absence of rules has left FIFA and the IOC sailing rudderless into stormy geopolitical waters and argues that they need to institute rules to guide their responses to events of this gravity and magnitude. Dispensing once and for all with the canard that sport and politics can be kept apart would enable sport’s governing bodies to appropriately leverage their political power and not merely act as puppets of the global north. More...

Editor's note:

Daniela is a researcher at the Asser Institute in the field of sport and human rights. She has a background in public international law and human rights law and defended her PhD project entitled “Blurred Lines of Responsibility and Accountability – Human Rights Abuses at Mega-Sporting Events” in April 2021 at Tilburg University. She also works as independent consultant in the field of sport and human rights for the Centre for Sport and Human Rights, or the European Parliament among other clients from the sports ecosystem

As Head of Policy and Outreach, Guido is in charge of the Centre for Sport & Human Rights engagement with governments, international and intergovernmental organisations and sports organisations. He represents the Centre at conferences, events and bilateral dialogues to reach new audiences and partners and raise public awareness and understanding of the Centre’s work .

On February 24, 2022, the Russian military invaded Ukrainian territory. What followed was an escalation of the war, day by day, causing thousands of victims and forcing millions of people to flee. On March 2, the UN General Assembly overwhelmingly adopted a resolution deploring "in the strongest possible terms" Russia's aggression against Ukraine by a vote of 141 to 5, with 35 abstentions. On March 29, Russian and Ukrainian representatives met in Istanbul for another round of negotiations. No ceasefire has been agreed and hostilities continue.

Many states, international organizations and corporations quickly took measures in response to this invasion. Hundreds of companies decided to withdraw from Russia. Some countries decided to strengthen economic sanctions against Russia and Belarus and to provide military and economic help to Ukraine. Many civil society actors mobilised to organize and provide humanitarian support for Ukraine. Interestingly, international sports organisations like the International Olympic Committee (IOC), the Fédération Internationale de Football Association (FIFA), World Athletics and many other international federations, issued statements condemning the invasion and imposed bans and sanctions on Russian and Belarussian sports bodies and athletes.

This blog post provides an overview of the measures adopted by a number of international sports federations (IFs) that are part of the Olympic Movement since the beginning of the war and analyses how they relate to the statements issued by the IOC and other sanctions and measures taken by international sports organisations in reaction to (geo)political tensions and conflict.

More...

On Wednesday 14 July 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organizing a Zoom In webinar on Rule 50 of the Olympic Charter and the right to free speech of athletes.

As the Tokyo Olympics are drawing closer, the International Olympic Committee just released new Guidelines on the implementation of Rule 50 of the Olympic Charter. The latter Rule provides that ‘no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. The latest IOC Guidelines did open up some space for athletes to express their political views, but at the same time continue to ban any manifestation from the Olympic Village or the Podium. In effect, Rule 50 imposes private restrictions on the freedom of expression of athletes in the name of the political neutrality of international sport. This limitation on the rights of athletes is far from uncontroversial and raises intricate questions regarding its legitimacy, proportionality and ultimately compatibility with human rights standards (such as with Article 10 of the European Convention on Human Rights).

This webinar aims at critically engaging with Rule 50 and its compatibility with the fundamental rights of athletes. We will discuss the content of the latest IOC Guidelines regarding Rule 50, the potential justifications for such a Rule, and the alternatives to its restrictions. To do so, we will be joined by three speakers, Professor Mark James from Manchester Metropolitan University, who has widely published on the Olympic Games and transnational law; Chui Ling Goh, a Doctoral Researcher at Melbourne Law School, who has recently released an (open access) draft of an article on Rule 50 of the Olympic Charter; and David Grevemberg, Chief Innovation and Partnerships Officer at the Centre for Sport and Human Rights, and former Chief Executive of the Commonwealth Games Federation (CGF). 

Guest speakers:

• Prof. Mark James (Metropolitan Manchester University)
• Chui Ling Goh (PhD candidate, University of Melbourne)
• David Grevemberg (Centre for Sport and Human Rights)

Moderators:

• Dr Antoine Duval (Asser Institute)
• Dr Marjolaine Viret (University of Lausanne)

Editor's note: Rusa Agafonova is a PhD Candidate at the University of Zurich, Switzerland   

The Olympic Games are the cornerstone event of the Olympic Movement as a socio-cultural phenomenon as well as the engine of its economic model. Having worldwide exposure,[1] the Olympic Games guarantee the International Olympic Committee (IOC) exclusive nine-digit sponsorship deals. The revenue generated by the Games is later redistributed by the IOC down the sports pyramid to the International Federations (IFs), National Olympic Committees (NOCs) and other participants of the Olympic Movement through a so-called "solidarity mechanism". In other words, the Games constitute a vital source of financing for the Olympic Movement.

Because of the money involved, the IOC is protective when it comes to staging the Olympics. This is notably so with respect to ambush marketing which can have detrimental economic impact for sports governing bodies (SGBs) running mega-events. The IOC's definition of ambush marketing covers any intentional and non-intentional use of intellectual property associated with the Olympic Games as well as the misappropriation of images associated with them without authorisation from the IOC and the organising committee.[2] This definition is broad as are the IOC's anti-ambush rules.More...

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two. More...

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

Since its inception, the Olympic Movement, and in particular the IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’ have eventually been accepted as a necessary part of sport over time (e.g. professionalism in sport),[1] while others are still strictly shunned (e.g. political protest and manifestations) and new ones have gained importance over the years (e.g. protection of intellectual property rights). The IOC has adopted a variety of legal mechanisms and measures to defend this sanitized space.  For instance, the IOC has led massive efforts to protect its and its partners’ intellectual property rights through campaigns against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’ ability to represent their personal sponsors[2]). Nowadays, the idea of the clean bubble is further reinforced through the colossal security operations created to protect the Olympic sites.

Nevertheless, politics, and in particular political protest, has long been regarded as one of the greatest threats to this sanitized space. More recently, politics has resurfaced in the context of the IOC Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the Guidelines stirred considerable criticism, to which Richard Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual respect’ through ‘restraint’ with the aim of using sport ‘to bring people together’.[3] In this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided vengeance’. These statements seem to endorse a view that one’s expression of their political beliefs at the Games is something that will inherently divide people and damage ‘mutual respect’. Thus, the question naturally arises: can the world only get along if ‘politics, religion, race and sexual orientation are set aside’?[4] Should one’s politics, personal belief and identity be considered so unholy that they must be left at the doorstep of the Games in the name of depoliticization and of the protection of the Games’ sanitized bubble? Moreover, is it even possible to separate politics and sport?  

Even Richard Pound would likely agree that politics and sport are at least to a certain degree bound to be intermingled.[5] However, numerous commentators have gone further and expressed their skepticism to the view that athletes should be limited in their freedom of expression during the Games (see here, here and here). Overall, the arguments made by these commentators have pointed out the hypocrisy that while the Games are bathed in politics, athletes – though without their labor there would be no Games – are severely restrained in expressing their own political beliefs. Additionally, they often bring attention to how some of the most iconic moments in the Games history are those where athletes took a stand on a political issue, often stirring significant controversy at the time. Nevertheless, what has not been fully explored is the relationship between the Olympic Games and politics in terms of the divide between the ideals of international unity enshrined in the Olympic Charter and on the other hand the de facto embrace of country versus country competition in the Olympic Games. While the Olympic Charter frames the Games as ‘competitions between athletes in individual or team events and not between countries’, the reality is far from this ideal.[6] Sport nationalism in this context can be considered as a form of politics because a country’s opportunity to host and perform well at the Games is frequently used to validate its global prowess and stature.

To explore this issue, this first blog will first take a historical approach by investigating the origins of political neutrality in sport followed by an examination of the clash between the ideal of political neutrality and the reality that politics permeate many facets of the Olympic Games. It will be argued that overall there has been a failure to separate politics and the Games but that this failure was inevitable and should not be automatically viewed negatively. The second blog will then dive into the Olympic Charter’s legal mechanisms that attempt to enforce political neutrality and minimize sport nationalism, which also is a form of politics. It will attempt to compare and contrast the IOC’s approach to political expression when exercised by the athletes with its treatment of widespread sport nationalism.More...

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

The Headlines

IOC Athlete Commission releases its Rule 50 Guidelines for Tokyo 2020

The IOC Athlete Commission presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive Board. It comes as Thomas Bach had recently underlined the importance of political neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of the Olympic Charter prohibits any political and religious expression by athletes and their team during the Games, subject to certain exceptions. The Guidelines clarify that this includes the ‘field of play’, anywhere inside the Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening, Closing and other official ceremonies’. On the other hand, athletes may express their views ‘during press conferences and interview’, ‘at team meetings’ and ‘on digital or traditional media, or on other platforms. While rule 50 is nothing new, the Guidelines have reignited a debate on whether it could be considered as a justified restriction on one’s freedom of expression.

The IOC has made the case that it is defending the neutrality of sport and that the Olympics is an international forum that should help bring people together instead of focusing on divisions. Specifically, Richard Pound has recently made the argument that the Guidelines have been formulated by the athletes themselves and are a justified restriction on free expression with its basis in ‘mutual respect’. However, many commentators have expressed their skepticism to this view (see here, here and here) citing that politics and the Olympics are inherently mixed, that the IOC is heavily involved in politics, and that the Olympics has often served as the grounds for some of history’s most iconic political protests. All in all, the Guidelines have certainly been a catalyst for a discussion on the extent to which the Olympics can be considered neutral. It also further highlights a divide between athlete committees from within the Olympic Movement structures and other independent athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).

Doping and Corruption Allegations in Weightlifting 

The International Weightlifting Federation (IWF) has found itself embroiled in a doping and corruption scandal after an ARD documentary was aired early in January which raised a wide array of allegations, including against the President of the IWF, Tamás Aján. The documentary also included hidden camera interviews from a Thai Olympic medalist who admits having taken anabolic steroids before having won a bronze medal at the 2012 London Olympic Games and from a team doctor from the Moldovan national team who describes paying for clean doping tests. The IWF’s initial reaction to the documentary was hostile, describing the allegations as ‘insinuations, unfounded accusations and distorted information’ and ‘categorically denies the unsubstantiated’ accusations. It further claims that it has ‘immediately acted’ concerning the situation with the Thai athletes, and WADA has stated that it will follow up with the concerned actors. However, as the matter gained further attention in the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual Papandrea, IWF Vice President, while ‘independent experts’ will conduct a review of the allegations made in the ARD documentary. Richard McLaren has been announced to lead the investigation and ‘is empowered to take whatever measures he sees fit to ensure each and every allegation is fully investigated and reported’. The IWF has also stated that it will open a whistleblower line to help aid the investigation.More...

Editor’s note: Thomas Terraz is a fourth year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1        Introduction

The International Olympic Committee (IOC), after many years of ineffective pushback (see here, here and here) over bye law 3 of rule 40[1] of the Olympic Charter (OC), which restricts the ability of athletes and their entourage to advertise themselves during the ‘blackout’ period’[2] (also known as the ‘frozen period’) of the Olympic Games, may have been gifted a silver bullet to address a major criticism of its rules. This (potentially) magic formula was handed down in a relatively recent decision of the Bundeskartellamt, the German competition law authority, which elucidated how restrictions to athletes’ advertisements during the frozen period may be scrutinized under EU competition law. The following blog begins by explaining the historical and economic context of rule 40 followed by the facts that led to the decision of the Bundeskartellamt. With this background, the decision of the Bundeskartellamt is analyzed to show to what extent it may serve as a model for EU competition law authorities. More...