Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

A New Chapter for EU Sports Law and European Citizenship Rights? The TopFit Decision - By Thomas Terraz

Editor’s note: Thomas Terraz is a third 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

Christmas has come very early this year for the EU sports law world in the form of the Court of Justice of the European Union’s (CJEU) judgment in TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the basis of European citizenship rights and its application to rules of sports governing bodies that limit their exercise. The case concerned an Italian national, Daniele Biffi, who has been residing in Germany for over 15 years and participates in athletic competitions in the senior category, including the German national championships. In 2016, the Deutscher Leichtathletikverband (DLV), the German Athletics Federation, decided to omit a paragraph in its rules that allowed the participation of EU nationals in national championships on the same footing as German citizens. As a result, participation in the national championship was subject to prior authorization of the organizers of the event, and even if participation was granted, the athlete may only compete outside of classification and may not participate in the final heat of the competition. After having been required to compete out of classification for one national championship and even dismissed from participating in another, Mr. Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German national court. The national court submitted a request for a preliminary ruling to the CJEU in which it asked essentially whether the rules of the DLV, which may preclude or at least require a non-national to compete outside classification and the final heat, are contrary to Articles 18, 21 and 165 TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the basis of nationality against European citizens exercising their free movement. The underlying (massive) question here is whether these provisions can be relied on by an amateur athlete against a private body, the DLV.

Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an entirely different angle. Instead of tackling the potentially sensitive questions attached with interpreting the scope of European citizenship rights, the opinion focused on the application of the freedom of establishment because the AG found that participation in the national championships was sufficiently connected to the fact Mr. Biffi was a professional trainer who advertised his achievements in those competitions on his website. Thus, according to the AG, there was a sufficient economic factor to review the case under a market freedom. The CJEU, in its decision, sidelined this approach and took the application of European citizenship rights head on.

The following will dissect the Court’s decision by examining the three central legal moves of the ruling: the general applicability of EU law to amateur sport, the horizontal applicability of European citizenship rights, and justifications and proportionality requirements of access restrictions to national competitions. More...

International and European Sports Law – Monthly Report – April and May 2019. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

Caster Semenya learns that it is not always easy for victims of discrimination to prevail in court

The world of sport held its breath as the Secretary General of the Court of Arbitration for Sport (CAS) Matthieu Reeb stood before the microphones on 1 May 2019 to announce the verdict reached by three arbitrators (one of them dissenting) in the landmark case involving the South African Olympic and world champion Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the conclusion that the IAAF’s regulations requiring female athletes with differences of sexual development to reduce their natural testosterone level below the limit of 5 nmol/L and maintain that reduced level for a continuous period of at least six months in order to be eligible to compete internationally at events between 400 metres and a mile, were necessary, reasonable and proportionate to attain the legitimate aim of ensuring fair competition in female athletics, even though the panel recognised that the regulations were clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For the time being, this appears to be a good move since the tribunal ordered the IAAF at the beginning of June to suspend the application of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run medication-free.

 

Champions League ban looms on Manchester City

On 18 May 2019, Manchester City completed a historic domestic treble after defeating Watford 6-0 in the FA Cup Final. And yet there is a good reason to believe that the club’s executives did not celebrate as much as they would under normal circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club Financial Control Body (CFCB) had decided to refer Manchester City’s case concerning allegations of financial fair play irregularities to the CFCB adjudicatory chamber for a final decision. Thus, the chief investigator most likely found that Manchester City had indeed misled UEFA over the real value of its sponsorship income from the state-owned airline Etihad and other companies based in Abu Dhabi, as the leaked internal emails and other documents published by the German magazine Der Spiegel suggested. The chief investigator is also thought to have recommended that a ban on participation in the Champions League for at least one season be imposed on the English club. The club’s representatives responded to the news with fury and disbelief, insisting that the CFCB investigatory chamber had failed to take into account a comprehensive body of irrefutable evidence it had been provided with. They eventually decided not to wait for the decision of the CFCB adjudicatory chamber, which is yet to be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.

 

The Brussels Court of Appeal dismisses Striani’s appeal on jurisdictional grounds

The player agent Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction to entertain his case targeting UEFA’s financial fair play regulations. On 11 April 2019, the respective court dismissed his appeal against the judgment of the first-instance court without pronouncing itself on the question of compatibility of UEFA’s financial fair play regulations with EU law. The court held that it was not competent to hear the case because the link between the regulations and their effect on Mr Striani as a player agent, as well as the link between the regulations and the role of the Royal Belgian Football Association in their adoption and enforcement, was too remote (for a more detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the European Court of Justice and the European Commission as both these institutions had likewise rejected to assess the case on its merits in the past.

 

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League of Legends European Championships - Challenging the Boundaries of Sport in EU Law - By Thomas Terraz

Editor’s note: Thomas Terraz is a third 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 surge of e-sports has stimulated a lively discussion on the essential characteristics of sport and whether e-sports, in general, can be considered a sport. However, one should not overlook the fact that e-sports encompass a broad range of video games that fundamentally differ from one another. Thus, as one commentator recently underlined, “the position of video games and the e-sport competitions based on them should be analysed on a case-by-case basis.”[1] In this spirit, this blog aims to provide a concise analysis of one of these e-sports, League of Legends (LoL), and one of its main competitions, the League of Legends European Championship (LEC), to assess whether it could be considered a sport in the sense of EU law. The LEC offers a fascinating opportunity to examine this issue especially since the previous European League of Legends Championship Series (EU LCS) was rebranded and restructured this year into the LEC. More...



Will the World Cup 2022 Expansion Mark the Beginning of the End of FIFA’s Human Rights Journey? - By Daniela Heerdt

Editor's note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games.


About three years ago, the Fédération Internationale de Football Association (FIFA) adopted a new version of its Statutes, including a statutory commitment to respect internationally recognized human rights. Since then, FIFA undertook a human rights journey that has been praised by various stakeholders in the sports and human rights field. In early June, the FIFA Congress is scheduled to take a decision that could potentially undo all positive efforts taken thus far.

FIFA already decided in January 2017 to increase the number of teams participating in the 2026 World Cup from 32 to 48. Shortly after, discussions began on the possibility to also expand the number of teams for the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility study, which revealed that the expansion would be feasible but require a number of matches to be hosted in neighbouring countries, explicitly mentioning Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One does not have to be a human rights expert to be highly alarmed by this list of potential co-hosting countries. Nevertheless, the FIFA Council approved of the possibility to expand in March 2019, paving the way for the FIFA Congress to take a decision on the matter. Obviously, the advancement of the expansion decision raises serious doubts over the sincerity of FIFA’s reforms and human rights commitments. More...



How Data Protection Crystallises Key Legal Challenges in Anti-Doping - By Marjolaine Viret

Editor's Note: Marjolaine is a researcher and attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. Her interests focus on interdisciplinary approaches as a way of designing effective solutions in the field of anti-doping and other science-based domains. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” was published through T.M.C Asser Press / Springer in late 2015. She participates as a co-author on a project hosted by the University of Neuchâtel to produce the first article-by-article legal commentary of the 2021 World Anti-Doping Code. In her practice, she regularly advises international federations and other sports organisations on doping and other regulatory matters, in particular on aspects of scientific evidence, privacy or research regulation. She also has experience assisting clients in arbitration proceedings before the Court of Arbitration for Sport or other sport tribunals.


Since the spectre of the EU General Data Protection Regulation (‘GDPR’) has loomed over the sports sector,[1] a new wind seems to be blowing on anti-doping, with a palpable growing interest for stakes involved in data processing. Nothing that would quite qualify as a wind of change yet, but a gentle breeze of awareness at the very least.

Though the GDPR does mention the fight against doping in sport as a potential matter of public health in its recitals,[2] EU authorities have not gone so far as to create a standalone ground on which anti-doping organisations could rely to legitimise their data processing. Whether or not anti-doping organisations have a basis to process personal data – and specifically sensitive data – as part of their anti-doping activities, thus remains dependent on the peculiarities of each national law. Even anti-doping organisations that are incorporated outside the EU are affected to the extent they process data about athletes in the EU.[3] This includes international sports federations, many of which are organised as private associations under Swiss law. Moreover, the Swiss Data Protection Act (‘DPA’) is currently under review, and the revised legal framework should largely mirror the GDPR, subject to a few Swiss peculiarities. All anti-doping organisations undertake at a minimum to abide by the WADA International Standard for Privacy and the Protection of Personal Information (‘ISPPPI’), which has been adapted with effect to 1 June 2018 and enshrines requirements similar to those of the GDPR. However, the ISPPPI stops short of actually referring to the GDPR and leaves discretion for anti-doping organisations to adapt to other legislative environments.

The purpose of this blog is not to offer a detailed analysis of the requirements that anti-doping organisations must abide by under data protection laws, but to highlight how issues around data processing have come to crystallise key challenges that anti-doping organisations face globally. Some of these challenges have been on the table since the adoption of the first edition of the World Anti-Doping Code (‘WADC’) but are now exposed in the unforgiving light of data protection requirements. More...



What happens in Switzerland stays in Switzerland: The Striani Judgment of the Brussels Court of Appeals

In the last five years, the Striani case has been the main sword of Damocles hanging over UEFA’s Financial Fair Play Regulations. At the very least, the only real judicial threat they have faced (apart from the relatively harmless challenge mounted in the Galatasaray case at the CAS). Indeed, a Belgian player agent, Daniele Striani, represented by Bosman’s former lawyer Jean-Louis Dupont, attempted, in various fora, to challenge the compatibility of UEFA’s CL&FFP Regulations with EU law. Striani lodged a complaint with the European Commission (which was quickly rejected in October 2014) and initiated a private action for damages before the Brussels Court of First Instance. The latter deemed itself not competent to decide on the matter, but nevertheless accepted to order a provisory stay of the enforcement of the UEFA FFP Regulations pending a preliminary reference to the Court of Justice of the EU (see Ben van Rompuy’s blog on the case here). The CJEU unsurprisingly rejected to enter into the matter, but UEFA and Striani decided to appeal the first instance ruling to the Court of Appeal, which rendered its decision on 11 April. It is unclear at this stage whether Striani will attempt to challenge it at the Belgian Cour de Cassation (Highest Civil Court), however this would entail considerable risks and costs and his lawyers to date have not indicated that they would do so (see here). 

While the ruling of the Court of Appeal does not touch upon the much-discussed question of the compatibility of UEFA’s FFP Regulations with EU law (see our many blogs on the question here, here and here), it remains an interesting decision to discuss broader questions related to the procedural ease in challenging regulatory decisions passed by sports governing bodies (SGBs) based in Switzerland. Competition law constitutes the main legal tool available to sports stakeholders looking to challenge existing regulatory arrangements from the outside (e.g. not going through the internal political systems of the SGBs or the CAS route). Recent cases, such as the ISU decision of the European Commission, the Pechstein case in front of the German courts or the Rule 40 decision of the German competition authority, have demonstrated the potency of competition law to question the legality of the rules and decisions of the SGBs.[1] In this regard, the decision of the Brussels Court of Appeal narrows the range of parties allowed to challenge in European courts the SGBs’ rules and decisions on the basis of competition law. More...

Can European Citizens Participate in National Championships? An Analysis of AG Tanchev’s Opinion in TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. - By Thomas Terraz

Editor’s note: Thomas Terraz is a third 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

To many it may seem obvious that athletes in a national championship should only be able to participate if they have the nationality of the relevant state. The Dutch Road Cycling National Championships should have Dutch cyclists, and the German Athletics Championships should have German athletes and so forth. However, in reality, foreign competitors are allowed to participate in many national championships in the EU, and there is a wide discrepancy between the rules of national sport governing bodies on this issue. There is no unified practice when investigating this point by country or by sport, and rules on participation range from a complete ban on foreign competitors to absolutely no mention of foreign athletes.[1] Thus, the question arises: should foreign athletes be able to participate in national sport championships?

The Court of Justice of the European Union (CJEU) will soon be required to provide an, at least partial, answer to this dilemma as a result of an application for a preliminary ruling.  A German Court has referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU citizenship rights and in particular, the requirement of non-discrimination on the basis of nationality, should be applied to non-nationals wishing to participate in an athletics national championship in Germany. In the meantime, the Advocate General (AG), who provides a non-binding opinion to the Court before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants based on EU citizenship rights and urges the CJEU to instead review the case on the basis of the freedom of establishment.

This blog will dissect the AG’s opinion to assess the main arguments put forward in relation to freedom of establishment and EU citizenship. Furthermore, it will weigh the ramifications this case may have on the boundaries of EU law in relation to sport. To fully appreciate the AG’s opinion, it is necessary to first discuss the intriguing factual and legal background colouring this case. After all, this will not be the first time the CJEU faces thorny issues concerning discrimination on the basis of nationality and sport. More...


International and European Sports Law – Monthly Report – February and March 2019. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

The Court of Arbitration for Sport bans 12 Russian track and field athletes

On 1 February 2019, the Court of Arbitration for Sport (CAS) communicated that it had rendered another 12 decisions in the seemingly endless saga concerning the state-sponsored doping programme in Russia. These first-instance decisions of the CAS involve 12 Russian track and field athletes who were all found guilty of anti-doping rule violations based on the evidence underlying the reports published by professor Richard McLaren and suspended from participating in sports competitions for periods ranging from two to eight years. Arguably the most prominent name that appears on the list of banned athletes is Ivan Ukhov, the 32-year-old high jump champion from the 2012 Olympic Games in London.

The case was brought by the International Association of Athletics Federation (IAAF) that sought to convince the arbitrators that the athletes in question had participated in and/or benefited from anabolic steroid doping programmes and benefited from specific protective methods (washout schedules) in the period between the 2012 Olympic Games in London and the 2013 IAAF World Championships in Moscow. The CAS was acting in lieau of the Russian Athletics Federation that remains suspended and thus unable to conduct any disciplinary procedures. The athletes have had the opportunity to appeal the decisions to the CAS Appeals Arbitration Division.

Federal Cartel Office in Germany finds Rule 40 of the Olympic Charter disproportionately restrictive

At the end of February, the German competition authority Bundeskartellamt announced that it had entered into a commitment agreement with the German Olympic Sports Confederation (DOSB) and the International Olympic Committee (IOC) in which these two organisations had agreed to considerably enhance advertising opportunities for German athletes and their sponsors during the Olympic Games. The respective agreement is a direct consequence of the Bundeskartellamt’s finding that the IOC and the DOSB had abused their dominant position on the market for organising and marketing the Olympic Games by demanding that the athletes refrain from promoting their own sponsors while the Games are ongoing, as well as shortly before and after the Games. This restriction stems from Rule 40(3) of the Olympic Charter under which no competitor who participates in the Games may allow his person, name, picture or sports performances to be used for advertising purposes, unless the IOC Executive Board allows him/her to do so.

As part of fulfilling its obligations under the commitment agreement, the DOSB has relaxed its guidelines on promotional activities of German athletes during the Olympic Games. For its part, the IOC has declared that these new guidelines would take precedence over Rule 40(3) of the Olympic Charter. However, it still remains to be seen whether in response to the conclusions of the German competition authority the IOC will finally change the contentious rule.

The Grand Chamber of the European Court of Human Rights refuses to pronounce itself on Claudia Pechstein’s case

Claudia Pechstein’s challenge against the CAS brought before the European Court of Human Rights (ECtHR) has not yielded the desired result for the German athlete. On 5 February 2019, a Panel of the Grand Chamber of the ECtHR decided that the Grand Chamber would not entertain the case. This means that the judgment handed down by the 3rd Chamber of the ECtHR on 2 October 2018, in which the ECtHR confirmed that except for the lack of publicity of oral hearings the procedures of the CAS are compatible with the right to a fair trial under Article 6(1) of the European Convention on Human Rights, has now become final and binding. However, the protracted legal battle between the five-time Olympic champion in speed skating and the CAS is not over yet since there is one more challenge against the CAS and its independence pending before the German Constitutional Court.  More...

New Event! FIFA and Human Rights: Impacts, Policies, Responsibilities - 8 May 2019 - Asser Institute

In the past few years, FIFA underwent intense public scrutiny for human rights violations surrounding the organisation of the World Cup 2018 in Russia and 2022 in Qatar. This led to a reform process at FIFA, which involved a number of policy changes, such as:

  • Embracing the United Nations Guiding Principles on Business and Human Rights;
  • The inclusion of human rights in the FIFA Statutes;
  • Adopting new bidding rules including human rights requirements;
  • And introducing a Human Rights Advisory Board.

To take stock of these changes, the Asser Institute and the Netherlands Network for Human Rights Research (NNHRR), are organising a conference on the Fédération Internationale de Football Association (FIFA) and human rights, which will take place at the Asser Institute in The Hague on 8 May 2019.

This one-day conference aims to take a deeper look at FIFA’s impacts on human rights and critically investigate the measures it has adopted to deal with them. Finally, we will also address FIFA’s potential legal responsibilities under a variety of human rights laws/instruments.


Preliminary Programme

9:00 Registration & Coffee

9:45 Welcome by Antoine Duval (Asser Institute) & Daniela Heerdt (Tilburg University)

10:00 Opening Remarks by Andreas Graf (Human Rights Officer, FIFA)

10:30 Panel 1: FIFA & Human Rights: Impacts

  • Zoher Shabbir (University of York) – The correlation between forced evictions and developing nations hosting the FIFA World Cup
  • Roman Kiselyov (European Human Rights Advocacy Centre) - FIFA World Cup as a Pretext for a Crackdown on Human Rights
  • Eleanor Drywood (Liverpool University) - FIFA and children’s rights: theory, methodology and practice 

12:00 Lunch

13:00 Panel 2: FIFA & Human Rights: Policies

  • Lisa Schöddert & Bodo Bützler (University of Cologne) – FIFA’s eigen-constitutionalisation and its limits
  • Gigi Alford (World Players Association) - Power Play: FIFA’s voluntary human rights playbook does not diminish Switzerland’s state power to protect against corporate harms
  • Brendan Schwab (World Players Association) & Craig Foster - FIFA, human rights and the threatened refoulement of Hakeem Al Araibi 

14:30 Break

15:00 Panel 3: FIFA & Human Rights: Responsibilities

  • Daniel Rietiker (ECtHR and University of Lausanne) - The European Court of Human Rights and Football: Current Issues and Potential
  • Jan Lukomski (Łukomski Niklewicz law firm) - FIFA and the International Covenant on Economic, Social and Cultural Rights : Obligations, duties and remedies regarding the labour rights         protected under the ICESCR
  • Raquel Regueiro Dubra (Complutense University of Madrid) - Shared international responsibility for human rights violations in global events. The case of the 2022 World Cup in Qatar.
  • Wojciech Lewandowski (Polish Academy of Sciences/University of Warsaw) - Is Bauer the new Bosman? – The implications of the newest CJEU jurisprudence for FIFA and other sport governing bodies

17:00 Closing Remarks by Mary Harvey (Chief Executive, Centre for Sports and Human Rights)


More information and registration at https://www.asser.nl/education-events/events/?id=3064

International and European Sports Law – Monthly Report – January 2019 - By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines

#Save(d)Hakeem

The plight of Hakeem al-Araibi – the 25-year-old refugee footballer who was arrested last November in Bangkok upon his arrival from Australia on the basis of a red notice issued by Interpol in contravention of its own policies which afford protection to refugees and asylum-seekers – continued throughout the month of January. Bahrain – the country Hakeem al-Araibi fled in 2014 due to a (well-founded) fear of persecution stemming from his previous experience when he was imprisoned and tortured as part of the crackdown on pro-democracy athletes who had protested against the royal family during the Arab spring – maintained a firm stance, demanding that Hakeem be extradited to serve a prison sentence over a conviction for vandalism charges, which was allegedly based on coerced confessions and ignored evidence.

While international sports governing bodies were critised from the very beginning for not using enough leverage with the governments of Bahrain and Thailand to ensure that Hakeem’s human rights are protected, they have gradually added their voice to the intense campaign for Hakeem’s release led by civil society groups. FIFA, for example, has sent a letter directly to the Prime Minister of Thailand, urging the Thai authorities ‘to take the necessary steps to ensure that Mr al-Araibi is allowed to return safely to Australia at the earliest possible moment, in accordance with the relevant international standards’. Yet many activists have found this action insufficient and called for sporting sanctions to be imposed on the national football associations of Bahrain and Thailand.      

When it looked like Hakeem will continue to be detained in Thailand at least until April this year, the news broke that the Thai authorities agreed to release Hakeem due to the fact that for now the Bahraini government had given up on the idea of bringing Hakeem ‘home’ – a moment that was praised as historic for the sport and human rights movement.

Russia avoids further sanctions from WADA despite missing the deadline for handing over doping data from the Moscow laboratory 

WADA has been back in turmoil ever since the new year began as the Russian authorities failed to provide it with access to crucial doping data from the former Moscow laboratory within the required deadline which expired on 31 December 2018, insisting that the equipment WADA intended to use for the data extraction was not certified under Russian law. The Russian Anti-Doping Agency thus failed to meet one of the two conditions under which its three-year suspension was controversially lifted in September 2018. The missed deadline sparked outrage among many athletes and national anti-doping organisations, who blamed WADA for not applying enough muscle against the Russian authorities.

Following the expiry of the respective deadline, it appeared that further sanctions could be imposed on the Russian Anti-Doping Agency, but such an option was on the table only until WADA finally managed to access the Moscow laboratory and retrieve the doping data on 17 January 2019. Shortly thereafter, WADA President Sir Craig Reedie hailed the progress as a major breakthrough for clean sport and members of the WADA Executive Committee agreed that no further sanctions were needed despite the missed deadline. However, doubts remain as to whether the data have not been manipulated. Before WADA delivers on its promise and builds strong cases against the athletes who doped – to be handled by international sports federations – it first needs to do its homework and verify whether the retrieved data are indeed genuine.  

British track cyclist Jessica Varnish not an employee according to UK employment tribunal

On 16 January 2019, an employment tribunal in Manchester rendered a judgment with wider implications for athletes and sports governing bodies in the United Kingdom, ruling that the female track cyclist Jessica Varnish was neither an employee nor a worker of the national governing body British Cycling and the funding agency UK Sport. The 28-year-old multiple medal winner from the world and European championships takes part in professional sport as an independent contractor but sought to establish before the tribunal that she was in fact an employee of the two organisations. This would enable her to sue either organisation for unfair dismissal as she was dropped from the British cycling squad for the 2016 Olympic Games in Rio de Janeiro and her funding agreement was not renewed, allegedly in response to her critical remarks about some of the previous coaching decisions.

The tribunal eventually dismissed her challenge, concluding that ‘she was not personally performing work provided by the respondent – rather she was personally performing a commitment to train in accordance with the individual rider agreement in the hope of achieving success at international competitions’. Despite the outcome of the dispute, Jessica Varnish has insisted that her legal challenge contributed to a positive change in the structure, policies and personnel of British Cycling and UK Sport, while both organisations have communicated they had already taken action to strengthen the duty of care and welfare provided to athletes.  

 

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Asser International Sports Law Blog | (A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

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(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

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.

 

2.     The Legal Framework

a.     Athlete Led Political Protest

The groundwork for political neutrality is set out in the Fundamental Principles of Olympism (point 5) and Rule 2 (5) of the Olympic Charter. As was illuminated in the first blog, this is presented by the Olympic Charter to ensure the autonomy of sport. One of the specific ways in which the Olympic Charter tries to secure this ideal is through Rule 50 which bans political protest at Olympic sites.[8] Last year, the IOC Athletes’ Commission released its Guidelines on Rule 50 which underscored the far-reaching prohibitions Rule 50 entails. Athletes are not allowed to display any sort of ‘political messaging’ or make any ‘gestures of a political nature’. This includes no ‘signs or armbands’, no ‘hand gestures or kneeling’. Even ‘refusal to follow the Ceremonies protocol’ is considered a violation of Rule 50. Rubbing salt in the wound is the fact that the geographic scope of this ban extends to ‘all Olympic venues’, thus even covering the Olympic Village. Athletes may only disperse their political speech during ‘press conferences and interviews’, ‘team meetings’ and through ‘digital or traditional media, or on other platforms’. The Guidelines, however, underline that this exception only applies to ‘expressing views’, making a distinction from ‘protests and demonstrations’, which includes the actions described above. Arguably, drawing such a line may be blurry in practice. In other words, at what point does an athlete’s expression of a view become political protest? This question is particularly relevant given the broad interpretation the Guidelines have taken on what constitutes political protest. In the end, while the Guidelines claim that this is only to ensure that everyone ‘can enjoy the experience of the Olympic Games without any divisive disruption’, such a broad interpretation of Rule 50 arguably goes beyond the attempt to prevent any ‘disruption’ to athletes’ achievements.

The consequences for athletes who do not follow these rules can be very serious. Bye-Law 1 to Rule 50 states that if such ‘propaganda’ appears on an athlete’s clothing or equipment (e.g. an armband or hidden t-shirt), they may be disqualified. The Guidelines, on the other hand, remain rather vague. Instead, each case is to be decided by the athlete’s ‘National Olympic Committee, International Federation and the IOC’ and ‘disciplinary action’ will be decided on an individual basis. Nevertheless, given simply the looming threat of a disqualification, it is likely that the vast majority of athletes will simply fall into line.[9]

 

b.    Sport Nationalism and Medal Tables

The clearest example of the wilful disregard of the Olympic Movement to combat sport nationalism is its tacit acceptance of Olympic medal tables despite an explicit ban in the Olympic Charter. The foundations of this ban can be found in Rule 6 of the Olympic Charter which stipulates that the ‘Olympic Games are competitions between athletes in individual or team events and not between countries’ (emphasis added). Rule 57 then specifically addresses medal tables, stating that the ‘IOC and the OCOG shall not draw up any global ranking per country’. Finally, Rule 27 (6) highlights how NOCs bear a special responsibility to ‘preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter’. With this framing, while the IOC and OCOG are not allowed to create a medal table, the NOCs have essentially been left off the hook. In practice, NOCs have not hesitated to boast of their performances on medal tables. For instance, the United States Olympic Committee jumped at the opportunity to celebrate how it had topped the medal chart for the ‘6th straight games’ at Rio 2016.[10] In the meantime, political leaders and the media continue to gush over the achievements of their countries through their standing in the medal table.[11] While hosting Olympic athletes at the White House, Obama emphasized how Team USA had ‘won the most medals by far’ at the Rio Games.[12] Additionally, national governments are aware of their standings in medal tables and have used them to shape their sport policies, including funding for elite sport.[13] NOCs play a role here as well. For example, the Dutch NOC*NSF, in its overview of its elite sport strategy and finance, has set its goal to be a top 10 nation in elite sport, which involves ‘striving for more medals’.[14] Indeed, the determination of whether a nation is in the top 10 presupposes the creation of some sort of ‘global ranking per country’. Lastly, concerning the media, the IOC’s editorial guidelines for Olympic properties at Rio 2016 even clearly states that it has ‘no objection’ to medal tables in published material.[15]

The Olympic Charter requires the IOC ‘to oppose any political ... abuse of sport and athletes’.[16] All the above examples are illustrations of using sport and athletes’ achievements for political purposes.[17] Given this picture, it could be argued that the IOC has increasingly taken a rather laid back approach to medal tables and does not seem to mind how other actors – both within and outside the Olympic Movement – use them to stimulate a country versus country narrative around the Olympic Games.[18] In essence, medal tables paint those countries at the top as the winners and those at the bottom as the losers, further elevating nationalist politics: the myth of the nations of the innately strong and those of the weak. The IOC, as the ‘supreme authority’ of the Olympic Movement, could adopt a stronger tone to push back against the omnipresent nature of medal tables within the Games as it stands in complete opposition to its fundamental principles.[19] Indeed, part of the IOC’s mission is to ‘to take action to strengthen the unity of the Olympic Movement, to protect its independence, to maintain and promote its political neutrality and to preserve the autonomy of sport’ (emphasis added).[20] But there is no unity in the Olympic Movement concerning medal tables, only disarray, ranging from tacit acceptance to zealous celebrations of a nation’s ranking.

3.     Unveiling the Hypocrisy

In view of this, there seems to be a disparity in the Olympic Movement’s approach to politics when it comes from athletes, where there is the potential for severe sanctions, compared to sport nationalism arising from medal tables, where it seems to have all but accepted their existence. Looking beyond simply medal tables, so much of the Olympic Games emphasizes a competition between countries, further stimulating sport nationalism: (1) an opening ceremony where athletes march into an arena behind their nation’s flag and where the host puts on ‘cultural performances’ that ‘dramatize national myths, experiences, and values’[21]; (2) national anthems that are religiously played during each medal ceremony while national flags are hoisted up; (3) the way in which many team sports are played between countries. More credence is given to this view when one also observes how the media – and sometimes even NOCs -  help push a country versus country narrative, which can potentially overshadow athletes’ individual accomplishments.[22] The constant flood of national imagery during the Games casts doubt on the idea that the Olympic Games is not a competition between countries, creating greater friction between the ideas of ‘universalism and nationalism’.[23] It should also be recalled, as was pointed out in the first blog, that states use sport nationalism to help push foreign and internal political agendas.  Some have argued that in this way sport can be ‘regarded as compensation, a sense of nostalgia or as a cure against the erosion of national identity’, even becoming ‘an alternative to war’.[24] Others have taken another view that instead of acting as a sort of pressure release, the Games ‘may provide opportunities for extending and exacerbating nationalist-inspired conflicts’, further entrenching nationalism.[25]

However, this blog is not arguing that the IOC should take heavy handed action to discourage the media from tallying up medals or to reel in a NOC’s pride in the performance of its athletes or to rid the Olympic Games of all signs of national imagery. On the contrary, it seems that the idea to minimize sport nationalism through the inclusion of Rule 6 and 57 of the Olympic Charter should be characterized as an expression of a lofty ideal that personifies international unity – i.e. something to be aspired to but not some concrete goal to be realized through rigorous enforcement. Again, it is completely legitimate for the Olympic Movement to strive for this ideal and to also defend its political neutrality. Yet, given how the IOC has all but accepted this form of politics (sport nationalism), it is puzzling why it has not taken a more tolerant approach to political expression from athletes, including protests/demonstrations, especially when considering how medal tables arguably pose a far greater threat to the fundamental principles of the Olympic Movement.[26] Perhaps given how sports can help stir national pride within a populace, it is possible that this phenomenon may encourage more viewership hours. Consequently, presenting the Games as a country versus country competition may be more lucrative. On the other hand, potentially unpredictable athlete protests may risk dividing audiences and may also put Olympic sponsors on edge. But assuming this is the case, is this reason enough to ban such expression altogether?

Regardless, in the same way sport nationalism will likely never be completely erased, athletes’ political expression will continue to be part of the Olympic fabric. Fundamentally, it all boils down to whether it is truly possible to disentangle politics and sport? If so, is it realistic or even desirable? One could maybe argue that this unbundling is necessary to promote international unity and to ensure the universality, neutrality and autonomy of sport. However, how far should the Olympic Movement go to achieve this result and is such a consequentialist approach appropriate considering the pressures it places on athletes – i.e. do the ends justify the means? I would argue that this process of sanitization is burdened with too many moral concerns and is an enforcement minefield in practice. While outside the scope of this blog, it should be noted that it is not difficult to imagine an athlete challenging the concerned provisions on the basis of human rights and/or EU law.

All things considered, the IOC chooses the kind of politics it is willing to tolerate within its sphere of influence. The national structures within the Olympic Movement, the influence of national governments, and the seducing narratives of nationalism create significant headwinds in favor of the politics of sport nationalism. Therefore, the IOC, an entity that embodies the transnational, has a responsibility to be a counterbalance in this system.[27] In doing so, the IOC - the leader of the Olympic Movement – should defend, or at least tolerate, the free expression of its ‘people’, the athletes. This is not a radical proposition. It is worth remembering that athletes form an integral part of the Olympic Movement.[28] Simply respecting the free expression of athletes does not automatically sacrifice the political neutrality of the Olympic Movement.

4.     Conclusion

Over the past year, the IOC has faced increasing public pressure, particularly from athlete stakeholders (see here, here and here) to reverse its course concerning Rule 50 of the Olympic Charter. As a result, it announced that the IOC Athletes Commission would conduct a consultation process concerning Rule 50. The IOC Athletes Commission just recently finished its consultation and its ‘recommendations will be presented to the IOC Executive Board by the end of April 2021’. Meanwhile, NOCs have also individually taken certain steps to allow more athlete activism, such as the US Olympic and Paralympic Committee (USOPC) which has committed to not sanction athletes who ‘peacefully and respectfully’ protest ‘in support of racial and social justice for all human beings’. In this regard, the USOPC declared that ‘human rights are not political, calls for equity and equality must not be confused with divisive demonstrations’. While perhaps attractive at first glance, the USOPC is only moving the goalposts by playing semantics with ‘politics’ by narrowing its definition to eliminate ‘human rights’[29] from its ambit. In doing so, the USOPC does not explain why human rights are not political issues. The reality is that the scope and implications of human rights remain hotly contested issues everywhere in the world, they can hardly be depoliticized. Nevertheless, the softening of the USOPC’s position and its acknowledgement of some its past mistakes is a good start.[30]

In view of today’s strong social currents, the IOC may be forced to abandon its dream of a pure and apolitical Olympic Games. Politics has and will continue to ooze into the sanitized spaces of the Olympic Games. Allowing athletes to raise their voice during the Games would allow them to share their political views with the world, instead of confining them to remaining passive laborers in the Olympic economy subject to the power politics of states.


[1] Although the current IOC President, Thomas Bach, would likely dispute this point. Bach recently argued: ‘Neither awarding the Games, nor participating, are a political judgment regarding the host country.’ See Thomas Bach, ‘The Olympics are about diversity and unity, not politics and profit. Boycotts don't work’ (The Guardian, 24 October 2020).

[2] This is by no means an exhaustive list.

[3] Philip Barker, ‘The forbidden Olympic table’ (Inside the Games, 24 January 2020).

[4] See how the Washington Post gleefully counts the number of US gold medals and celebrates the fact that the U.S. has ‘more than double any other country’s count’. See Team GB’s (British Olympic Association) fervent count of its medals at Rio 2016. See also Team USA’s (U.S. Olympic and Paralympic Committee) glorification of its record-breaking medal count at the Rio 2016.

[5] For example when athletes are used during photo ops for political leaders around the world. See United States (Trump and Obama), Russia (here and here), and The Netherlands among many others.

[6] Ivo van Hilvoorde, Agnees Elling and Ruud Stokvis, ‘How to influence national pride? The Olympic medal index as a unifying narrative’ [2010] 45 International Review for the Sociology of Sport 87.

[7] Jackie Hogan, ‘Staging The Nation: Gendered and Ethnicized Disources of National Identity in Olympic Opening Ceremonies’ [2003] 27 Journal of Sport and Social Issues 100.

[8] Rule 50: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.’

[9] Indeed, athletes have been banned for life in the past for political actions. For instance, Vince Matthews and Wayne Collett who were banned for life after a podium protest at the 1972 Munich Olympics. Recently, there have been calls to undo their life bans.

[10] See also Team GB’s tracking of its own ‘record-breaking’ medal performance at the Rio Games.

[11] For some examples of the media obsession around the Olympic Games’ medal tables see: ‘Tokyo Olympics 2020 medal table: How does it work, which country usually wins and what are Britain's hopes?’ (The Telegraph, 26 January 2021); ‘Rio Olympics 2016: Team GB’s record breakers return home from Rio’ (BBC, 23 August 2016). ‘2020 Olympics: USA forecast to top medals table with GB and Australia fifth’ (The Guardian, 23 July 2019); Lazaro Gamio, Kim Soffen and Chiqui Esteban, ‘1,000 Times Gold’ (The Washington Post).

[12] Some have even suggested that the US performance at the 2012 London Olympics could have contributed to a boost in Obama’s polling for the presidential election that year. See John Cassidy, ‘Did the Olympics Boost Obama?’ (The New Yorker, 10 August 2012).

[13] See Germany’s concern of its place in medal rankings to justify restructuring its funding for elite sport. This is also acknowledged by van Hilvoorde, Elling and Stokvis (n 6).

[14] Original: ‘We streven naar meer medailles, in meer disciplines, met meer impact.’

[15] The Pyeongchang editorial guidelines (page 14) do not discourage their use.

[16] Rule 2 (11) Olympic Charter.

[17] See also other examples of the abuse of sport and athletes for political purposes by ‘states that use the Games for geo-political posturing’ in the first blog of this series.

[18] On the narratives around medal tables and the Games see van Hilvoorde, Elling and Stokvis (n 6).

[19] Rule 1 (1) Olympic Charter. Principles such as political neutrality and the autonomy and universality of sport.

[20] Rule 2 (5) Olympic Charter.

[21] Hogan (n 7).

[22] The media may also help stir nationalism by depicting the athletes of its home-nation as ‘succeeding because of their intellect, commitment, and consonance’ while foreign athletes fail due to insufficient ‘strength and skill’. See James Angelini, Andrew Billings and Paul MacArthur, ‘The Nationalistic Revolution Will Be Televised: The 2010 Vancouver Olympic Games on NBC’ [2012] 5 International Journal of Sport Communication 193. Also – Andrew Billings and others, Nationalistic Notions of the Superpowers: Comparative Analyses of the American and Chinese Telecasts in the 2008 Beijing Olympiad [2011] 55 Journal of Broadcasting & Electronic Media 251. Again, on narratives surrounding the Games and medal tables see van Hilvoorde, Elling and Stokvis (n 6).

[23] See Hogan (n 7). See also John Hargreaves, ‘Olympism and Nationalism: Some Preliminary Consideration’ [1992] 27 International Review for the Sociology of Sport 119.

[24] van Hilvoorde, Elling and Stokvis (n 6). See also George Orwell’s description of nationalism and sport in ‘The Sporting Spirit’.

[25] Hargreaves (n 23). It is interesting to note Hargreaves mentions how the Olympic Movement in of itself could perhaps be a sort of counterweight to such a ‘international relation model’. However, given how the Olympic Movement seems to have in many respects abandoned its fight against sport nationalism in the decades since, this caveat has arguably lost much of its weight.

[26] IOC President Thomas Bach even recognizes the trends of ‘rising nationalism’.

[27] This relates to Hargreaves’ point of the Olympic Movement acting to a certain extent autonomously and not simply ‘instruments of foreign policy’ of states. See Hargreaves (n 23).

[28] Rule 1 (1) Olympic Charter: ‘Under the supreme authority and leadership of the International Olympic Committee, the Olympic Movement encompasses organisations, athletes and other persons who agree to be guided by the Olympic Charter. The goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practised in accordance with Olympism and its values.’ (emphasis added)

[29] It is possible that the USOPC primarily is referring to ‘racial and social justice’.

[30] The USOPC also recognized its past errors in taking positions against athletes in previous instances.

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