Editor's note
Zlatka Koleva is a graduate from the Erasmus University Rotterdam and is currently an Intern at the ASSER International Sports Law Centre.

The decision on appeal in the case of O’Bannon v. NCAA seems, at first sight, to deliver answers right on time regarding the unpaid use of names, images and likenesses (NILs) of amateur college athletes, which has been an ongoing debate in the US after last year’s district court decision that amateur players in the college games deserve to receive compensation for their NILs.[1] The ongoing struggle for compensation in exchange for NILs used in TV broadcasts and video games in the US has reached a turning point and many have waited impatiently for the final say of the Court of Appeal for the 9^th circuit. The court’s ruling on appeal for the 9^th circuit, however, raises more legitimate concerns for amateur sports in general than it offers consolation to unprofessional college sportsmen. While the appellate court agreed with the district court that NCAA should provide scholarships amounting to the full cost of college attendance to student athletes, the former rejected deferred payment to students of up to 5,000 dollars for NILs rights. The conclusions reached in the case relate to the central antitrust concerns raised by NCAA, namely the preservation of consumer demand for amateur sports and how these interests can be best protected under antitrust law.

Facts and proceedings 

The case is brought before the district court by Ed O’Bannon, a former American basketball player at the University of California, Los Angeles (UCLA).[2] In 2008 he visited a friend’s house, where he saw his friend’s son playing a video game depicting him as a player in a college basketball competition.[3] The producer, Electronic Arts (EA), based video games on the concept of college football and men’s basketball.[4] O’Bannon saw an avatar with a striking resemblance of himself, playing for UCLA with his jersey number 31. He never consented to the use of his likenesses nor did he receive any financial remuneration for its usage.[5] For this reason, O’Bannon filed a lawsuit against the NCAA (National Collegiate Athletic Association) and the CLC (Collegiate Licensing Company) for using his NILs for commercial purposes.[6] The main argument supported by his legal counsel was that the NCAA restrictions on compensation for student athletes beyond university scholarships impose a limitation on trade under Section 1 of the Sherman Antitrust Act.[7] In June 2014 the claims based on antitrust law found a solid ground and the case was sent to the district court.[8] The court at first identified two markets where the NCAA rules can have a significant impact, namely the college education market and the group licensing market.[9] Afterwards, it applied the three-step Rule of Reason test in order to determine whether the NCAA restrictions on compensation for the usage of NILs violate antitrust laws.[10] After weighting the anticompetitive and procompetitive purposes of those rules, the court took the decisive third step in pursuit of less restrictive alternatives available to the NCAA in the attainment of its final goal – preserving the nature of amateur college games.[11] It ruled that there are two alternative routes, which preserve amateurism and, at the same time, protects the NILs rights of college athletes: stipends to the full cost of attendance or deferred payments as portions of the license agreements concluded between third party licensing companies and universities upon completion of their college education.[12] The NCAA objected to the district court’s decision on the ground that the court in the Board of Regents[13] declared the NCAA rules a matter of law and compensation norms, falling outside of the scope of a commercial activity, and therefore not covered by the Sherman Act. Finally, the association claimed that the plaintiffs failed to demonstrate injury as a result of the restrictions on compensation.[14] The Court of Appeal for the 9^th circuit ruled on the case as follows.

The judgment of the Court of Appeal for the 9^th circuit

Preliminary questions

The court started the legal discussion by answering to some preliminary legal questions before ruling on the substance. It rejected the notion that Board of Regents automatically renders the NCAA’s rules valid as a matter of law.[15] In fact, “a restraint that serves a procompetitive purpose can still be invalid under the Rule of Reason”.[16] Thus, procompetitive rules are not necessarily deemed lawful.[17] Moreover, rules designed to promote competitiveness “surely affect commerce” and, therefore, fall under the scope of the Sherman Act, according to the reasoning of the Court of Appeal in the 9^th circuit.[18] Finally, the court disagreed with NCAA in finding that the plaintiffs have no standing for failing to demonstrate the injury inflicted by the compensation rules.[19] On the contrary, the plaintiffs have shown willingness and readiness by video game producers to pay for their NILs rights have they possessed these rights, which means that the requirement of antitrust injury in this case is satisfied.[20]

Rule of Reason test

Judge Bybee then continued with the application of the Rule of Reason as assessed in relation to the restrictive measures towards compensation of student athletes.

1. Anticompetitive effect

The court concluded that the NCAA’s rules have an anticompetitive effect on the college education market and invalidated the association’s arguments.[21] It further examined whether the rules produce a procompetitive effect on the market and concluded that the district court has indeed undermined the importance the NCAA pays with regard to the preservation of amateurism in college competitions.[22]

2. Procompetitive purposes

Henceforth, the court outlined two procompetitive purposes of the NCAA’s restrictions: integrating academia with athletics and fostering the popularity of NCAA by promoting amateurism.[23] Nonetheless, it was highlighted that not every restrictive rule preserves the nature and distinctive character of college amateur sports.[24] For this reason, it should be examined whether there are any substantially less restrictive measures available to attain the goals intended by NCAA.[25]

3. Substantially less restrictive alternatives

The appellate court concurred with the district court on the first alternative, namely the grants-in-aid up to the full cost of attendance. The court for the 9^th circuit stated that “the district court did not clearly err in its judgment”[26] and “indicated that raising the grant-in-aid cap to the cost of attendance would have virtually no impact on amateurism”.[27] In fact, “there is no evidence that this cap will significantly increase costs”,[28] since NCAA already granted permission to schools to fund athletes to the full cost of attendance.[29] Nevertheless, the court rejected cash compensation beyond college scholarships to athletes on the ground that if amateur sportsmen receive a payment, they lose their amateur status.[30] The central question which needs closer attention is whether payments to amateur athletes promote amateurism more than the lack of any such remuneration.[31] The court, thus, contended that the comparison between smaller and larger sums and their respective impact on the market is irrelevant, since this is not a point of discussion in this analysis: it would not crystalize whether “paying students small sums is virtually as effective in promoting amateurism as not paying them”.[32] It further rejected the analogy with professional baseball and the Olympic Games, when in 1970s there was a strong opposition against the raising salaries of baseball players and the Olympic Committee permitted the participation of professional athletes in the Games.[33] The court, however, did not agree with this line of reasoning, since the Olympics have not been so impacted by the introduction of professionalism as college sports would be.[34] Finally, the imposition of a 5000-dollar yearly ceiling of deferred payments to college athletes lacks solid argumentation.[35] Neal Pilson, a former sports consultant at CBS and an expert witness for the NCAA, did not opine on how cash compensation relates to the promotion of amateurism and his ‘offhand comment’ does not grant sufficient support for such a revolutionary turnover in the NCAA’s practice.[36] Consequently, the deferred payment alternative failed the Rule of Reason test and was, thus, rejected.[37]

On these grounds, the court concluded that a stipend beyond sports scholarships up to the full amount of college attendance is a substantially less restrictive measure, which withstands the Rule of Reason test, while the cash compensation argument failed the assessment. 

Commentary

This judgment demonstrates a remarkable, yet confusing line of reasoning followed by the appellate court. On the one hand, albeit already affirmed by the NCAA itself, the decision confirms the right of schools to provide compensation up to the full amount of attendance to college athletes. On the other hand, however, the court could have outlined more clearly the instances in which an athlete can qualify for such full compensation and those cases in which student athletes risk violating their legal status of amateurs. A clear example of the court’s reluctance to give more specific guidelines with regard to this subject matter is the rejection of the argument raised by the district court in relation to the compensation received by college tennis players. Although they still qualify as amateurs, tennis competitors earn arguably around 10,000 dollars yearly in prize money.[38] The court conveniently circumvented this argument without stating opposing views or contesting the afore-mentioned statement. It directed its full attention on how the substantially less restrictive measures can contribute to the promotion of amateur college sports instead. In fine, there are two legal points that need further examination. Firstly, amateurism is a relevant concept as long as it relates to consumer demand in antitrust claims.[39] The question at step 3 should, thus, be reformulated to whether less restrictive alternatives are virtually effective in preserving consumer interest in college sports as those prohibiting extra compensation to amateur athletes.[40] In this respect, popular demand by consumers should be the decisive factor in antitrust cases within the sports sector. Secondly, what should also be taken into more careful consideration is that the court on appeal has skipped an essential step in the Rule of Reason analysis and, thus, arguably misapplied the concept.[41] Upon identification of less limiting measures for the attainment of the main goal, one has to balance the harm those alternatives might produce against the benefits there might be if such measures were not implemented. This final stage is necessary as to provide an objective cost-benefit analysis of a legal rule, which in turn determines whether it withstands the reasonableness test. Had the court applied the Rule of Reason in such a manner, the outcome of the case would have potentially differed significantly; the court would have weighted the cost of paying cash compensation to student athletes for their NILs rights against the lack of such additional educationally unrelated payment in the attainment of the NCAA’s final aim, namely preserving amateurism in college sports. [42]  Rather, as Chief Judge Thomas stated in his opinion, it is important to underline that, in the light of US antitrust rules, it is the preservation of popular demand for college sports which should be the key factor in the legal analysis of competition issues in such a scenario.[43]

At the end of the day, the NCAA’s dilemma is solved by the appellate court by exempting the association from further financial obligations towards college athletes. Both parties have 90 days after the release of the court’s decision to “weigh their options” for appeal before the Supreme Court.[44]

[1] Edward O'Bannon, Jr. v. National Collegiate Athletic Association (the NCAA) and Electronic Arts, Inc and Collegiate Licensing Company (CLC) 14-16601 (2015) [hereinafter referred to as ‘O’Bannon v NCAA (2015)’]; O’Bannon v. NCAA 7 F. Supp. 3d 955 (N.D. Cal. 2014) [hereinafter referred to as ‘O’Bannon v. NCAA (2014)’].

[2] Ibid, p 12.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Section 1 of Sherman Antitrust Act of 1890 15 U.S.C. states that ‘every contract, combination… in restraint of trade or commerce’ should be prohibited.

[8] O’Bannon v NCAA (2015) (n 1), p 14.

[9] O’Bannon v. NCAA (2014) (n 1), paras 956-968.

[10] Ibid., paras 984-1009.

[11] Ibid., paras 1005-1006.

[12] Ibid.

[13] NCAA v. Board of Regents of the University of Oklohoma 468 US 85 (1984).

[14] O’ Bannon v. NCAA (2015) (n 1), p 25.

[15] Ibid., p 26.

[16] Ibid., p 31.

[17] Ibid., p 32.

[18] Ibid., p 36: “We simply cannot understand this logic. Rules that are “anti-commercial and designed to promote and ensure competitiveness” […] surely affect commerce just as much as rules promoting commercialism.”

[19] Ibid., pp 37-43.

[20] Ibid., p 43.

[21] Ibid., pp 47-48.

[22] Ibid., pp 48-52.

[23] Ibid., p 51.

[24] Ibid., p 52.

[25] Ibid.

[26] Ibid., pp 54.

[27] Ibid.

[28] Ibid., p 56.

[29] Ibid.

[30] Ibid., p 57: “But in finding that paying students cash compensation would promote amateurism as effectively as not paying them, the district court ignored that not paying student-athletes is precisely what makes them amateurs”.

[31] Ibid., p 56: “The question is whether the alternative of allowing students to be paid NIL compensation unrelated to their education expenses, is “virtually as effective” in preserving amateurism as not allowing compensation.”

[32] Ibid., pp 58-59.

[33] Ibid., p 59.

[34] Ibid.

[35] Ibid., p 60.

[36] Ibid: “But even taking Pilson’s comments at face value, as the dissent urges, his testimony cannot support the finding that paying student-athletes small sums will be virtually as effective in preserving amateurism as not paying them.”

[37] Ibid., p 63 : “The Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes. It does not require more.”

[38] O’Bannon v. NCAA (2014) (n 1), para 1000.

[39] Chief Judge Thomas, concurring in part and dissenting in part, p 68.

[40] Ibid.

[41] Carrier M (2015) How Not to Apply the Rule of Reason: The O’Bannon Case. Rutgers University School of Law – Camden. http://ssrn.com/abstract=2672256. Accessed 20 October 2015.

[42] O’ Bannon v. NCAA (2015) (n 1), p 59: “The district court adverted to testimony from a sports management expert, Daniel Rascher, who explained that although opinion surveys had shown the public was opposed to rising baseball salaries during the 1970s, and to the decision of the International Olympic Committee to allow professional athletes to compete in the Olympics, the public had continued to watch baseball and the Olympics at the same rate after those changes”.

[43] Supra n 39, Chief Judge Thomas: “Rather, we must determine whether allowing student-athletes to be compensated for their NILs is ‘virtually as effective’ in preserving popular demand for college sports as not allowing compensation”.

[44] Tracy M and Strauss B, Court Strikes Down Payments to College Athletes (The New York Times.com, 30 September 2015). http://www.nytimes.com/2015/10/01/sports/obannon-ncaa-case-court-of-appeals-ruling.html?_r=0. Accessed 2 October 2015.

Editor's Note: Pedro is an intern at the Asser Institute and currently studying the Erasmus Mundus Master Degree in Sports Ethics and Integrity (KU Leuven et al.) He worked as a research fellow for the Centre for Sport and Human Rights, and his primary research interests lie in the fields of International Human Rights and sport. 

I.               Introduction

“I can’t do everything and I can’t do it alone. I need allies.” These are the words of the seven-time Formula 1 (F1) world champion, Lewis Hamilton. He was urging more support to advocate for the protection of human rights in the countries visited by Formula 1. During the last years, Hamilton together with Sebastian Vettel, have become the leaders of a movement demanding accountability and greater awareness of the impact of F1 on society.

The inclusion of the Bahrain GP on the F1 racing calendar for the first time in 2004 ignited concerns, which have grown with the inclusion of Abu Dhabi in 2007, Russia in 2014, Azerbaijan in 2017, and Saudi Arabia and Qatar in 2021. The inability and lack of commitment of state authorities to protect and respect human rights, the ineffectiveness of judicial procedures and the systematic repression of political opposition are some of the factors that make these countries prone to human rights violations. Academics and CSOs regularly argue that F1, by signing multi-million dollar contracts with these countries, is complicit in sportswashing. Those pulling the sport’s strings deny these accusations and claim that human rights are at the centre of their agenda when they visit these countries. They claim F1 can drive the improvement of human rights standards in a particular country. However, reality tells a different story. The Bahrain GP has been running for more than a decade and the situation in the country has only worsened, without any signs of F1 contributing to the improvement of the protection of human rights there.

This blog aims to provide an overview of the human rights challenges F1 is facing when hosting a Grand Prix. For this purpose, a case study of the Bahrain GP, one of the longest-running on the modern/current F1 calendar, will be carried out. This will allow us to examine in detail the historical evolution of the GP, the complaints from civil society organisations and the reaction of the Federation Internationale de l’Automobile (FIA) and other stakeholders to the ongoing allegations of human rights violations.

II.              The beginning of the story: 2011 Bahrain GP

The inclusion of the Bahrain GP on the Formula 1 calendar came years before the country ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 2006 and 2007 respectively. Already before this, several international organisations such as Amnesty International and Human Rights Watch (HRW) were documenting the systematic human rights violations in Bahrain, at least since the 1990s. However, the turning point in the country was the protests in 2011, inspired by the demonstrations in Tunisia and Egypt, in what is known as the “Arab Spring”. As the Report of the Bahrain Independent Commission of Inquiry highlighted, people mostly belonging to the Shia community were killed, tortured, unlawfully imprisoned or arrested during the armed repression of the protests.

In the same year, the protests directly impacted the organisation of the Bahrain GP. Initially, the race was postponed because it was to be held during the weekend when the first uprisings began. This measure was applauded by the teams, drivers and the authorities as the priority at the time for the Bahraini royal family was to heal divisions and overcome the tragedy. Nevertheless, three months later, FIA decided to approve the return of the Bahrain GP to the F1 calendar and host the race in December. The decision was taken on the basis of a report drafted by Carlos Gracia, FIA Commissioner, who in May of the same year went to Bahrain to analyse the situation and meet with different stakeholders. The report concluded that there was “NO indication of any problems or reasons why Bahrain’s F1 Grand Prix should not return to the 2021 Calendar”. This report contrasts starkly with the situation that civil society organisations were reporting at that time. Five days after Mr Gracia’s visit, a letter from HRW to Jean Todt, Chair of FIA, and Martin Whitmarsh, Chair of F1 Teams Association, expressed concern about the possible rescheduling of the Bahrain GP. The letter reiterated that the human rights situation in the country had “worsened considerably since the cancellation decision in February”. It explicitly indicated that arrests, tortures and restrictions on the work of CSOs and the media continued to be a daily occurrence in the country.

The response to the decision of the FIA to reschedule the Grand Prix was not unanimous, with some of the drivers expressing their disagreement. Red Bull F1 driver Mark Webber stated, “like it or not, F1 and sport in general isn’t above having a social responsibility and conscience. I hope F1 is able to return to Bahrain eventually but now isn’t the right time.” CSOs also started to advocate for the complete suspension of the race, collecting more than 300,000 signatures on a petition hosted by the organisation Avvaz. Ultimately, following a letter from The Formula One Teams Association (FOTA) to FIA expressing their objections, the event was suspended from the 2011 F1 calendar.

At the beginning of 2012, the situation was still tense, and the successful staging of the Bahrain GP for the new season was still in the air. Some CSOs were putting pressure on the teams to boycott the race while pointing out that the situation concerning human rights violations was similar to or worse than the previous year. In the end, with the support of many of the teams, FIA decided that the Bahrain GP would go ahead as planned.

Obviously, the protests in 2011 had a direct impact on the organisation of the Bahrain Grand Prix, to the extent that they led to its cancellation. This set the bar high for what needs to happen in terms of humanitarian reasons or human rights violations for the cancellation of an event. However, despite the deteriorating human rights situation in the country, the Bahraini authorities, F1 and FIA did not hesitate to reschedule the event from 2012 onwards. These decisions echoed beyond the world of sport and triggered reactions from civil society.

III.            The Bahrain GP and the growing human rights expectations of civil society vis a vis F1

The events of 2011 and 2012 were the perfect breeding ground for CSOs to exert pressure in the years to come. Different organisations since then have been demanding more significant consideration of human rights by F1 and other commercial stakeholders.

In 2013, four Bahraini NGOs stressed, in a letter to F1 race organisers, drivers, sponsors and broadcasters, that the situation in the country did not differ much from previous years. For these organisations, the intention of the government and organisers in hosting the Grand Prix was clear: “to broadcast a false picture of normality to the outside world”. The letter also prompted a political backlash from some British MPs who called for the Bahrain GP to be cancelled. But for the F1 chief executive at that time, Bernie Ecclestone, the allegations had nothing to do with the race. He expressed that “We [F1] don’t go anywhere to judge how a country is run. I keep asking people, ‘What human rights?’ – I don’t know what they are”. Thus, during 2013 and 2014, the race was run despite clear opposition from a number of CSOs.

Given the limited impact of the various reports and letters sent by CSOs to different stakeholders involved in the Bahrain GP, one of these organisations decided to explore a new approach. In 2014, Americans for Democracy & Human Rights in Bahrain (ADHRB) submitted a complaint to the United Kingdom National Contact Point for the OECD Guidelines for Multinational Enterprises. ADHRB alleged that “companies in the Formula One Group [a company registered in the UK] had failed to address human rights impacts associated with the Bahrain Grand Prix.” After a mediation procedure, ADHRB and F1 reached a common ground. F1 issued a statement including a commitment to respect internationally recognised human rights in all of its operations and to develop and implement a due diligence policy. The statement also states that “where domestic laws and regulations conflict with internationally recognised human rights, the Formula 1 companies will seek ways to honour them to the fullest extent which does not place them in violation of domestic law.” At first, this step was welcomed by the CSOs, but as time passed, it proved to be merely a mirage and not a substantial change in F1 practices.

The consistent violation of human rights in Bahrain continued in the years following the publication of the statement, especially through political repression and the use of violence against demonstrators, media and workers of human rights organisations, and so did the racing in Bahrain. During different demonstrations in 2016 and 2017 against the Bahrain GP, the police used excessive force, resulting in several arrests and even the death of one teenager. This revived the criticisms of the CSOs, who again demanded with more forcefulness and support for the respect of the commitments that F1 itself had published years ago. In a letter by different CSOs, it was highlighted that “failing to exercise due diligence and thus abide by your own Statement of Commitment to Respect for Human Rights risks greater complicity in human rights abuses in Bahrain and the tarnishing of your brand’s [F1] reputation.” In response to the letter, F1 stated that

“We believe that Formula 1’s presence in every country on its calendar is positive and a force for good. Sport engages people from all walks of life and plays an important role in uniting communities and encouraging tolerance and acceptance. We believe too that Formula 1’s global profile shines a light and brings transparency to the internal affairs of every country that we visit.”

It was only at the end of 2018 that F1 publicly expressed its concerns about the human rights situation in Bahrain, more specifically about the imprisonment of the activist Najah Yusuf for protesting against the GP. The United Nations Working Group on Arbitrary Detention (WGAD) considered this detention arbitrary, unlawful, and in violation of her rights to free speech and to a fair trial. Nevertheless, F1 never took action in the investigation process or strongly condemned the imprisonment. This prompted a large number of CSOs, including HRW and Amnesty International, to call on F1 again in 2019 to cancel the Grand Prix in response to a lack of investigation into Yusuf’s claims and urged drivers to boycott the race.

The second turning point was the postponement of the Bahrain GP in March 2020 due to the Covid-19 pandemic. In November of the same year, seventeen CSOs, including World Players Association, HRW and Amnesty International, issued a statement on the worsening situation in the country and how the pandemic has increased the risk of human rights violations linked to F1. Moreover, the focus was no longer only on the violations directly linked to the GP, but also on the use of the sporting event to whitewash the image of the country, what has been called “sportswashing”. This latter line of argument was also followed by a letter delivered by thirty British MPs to F1 chief Chase Carey. It is at this point that CSOs begin to gain more support from public officials for their demands. For example, 90 parliamentarians from Britain, Spain, Ireland, France, Belgium, Italy and Germany sent a letter in 2022 to Mohammed ben Sulayem, president of FIA, accusing FIA and F1 of actively facilitating sportswashing in Gulf countries.

We have charted ten years of human rights advocacy and demands linked to the Bahrain Grand Prix and directed at the FIA. Initially, these human rights claims were related to the 2011 uprisings, when CSOs claimed that the Bahrain GP could not be held due to the fragile political situation in the country and the constant human rights violations linked to the protests. Subsequently, from 2014 onwards, the discourse focused mainly on the direct links of some human rights violations with the organisation of the GP, with CSOs reproaching F1 for not exercising due diligence and thus failing to comply with its own human rights commitments. The final phase, from 2020 onwards, is mainly characterised by the involvement of other actors, such as politicians and F1 drivers, who protested against the F1 being used as an instrument by authoritarian states to launder their reputations. What has been the impact of such public protests and mobilizations by CSOs and others? Have they triggered transformative changes in the way F1 tackles human rights risks linked to the Bharain GP?

IV.            What has F1 done to improve the human rights situation in Bahrain?

While the human rights expectations of civil society vis a vis F1 are clear and increasingly demanding, as exposed in the previous section, only a few of these expectations have had a practical impact to some degree. In order to analyse these actions, it is necessary first to identify the two organisations with the power to take appropriate measures. On the one hand, the Formula One Group (FOG) is composed of a diverse cluster of companies and, on the other hand, the actions taken by the governing body of F1, FIA.

The position of the FOG until 2015 was highly criticised by CSOs, as the previous section illustrates, not only because of its lack of action but also because of its official discourse, mainly led by Bernie Ecclestone, which belittled human rights. The exit of the British magnate from the FOG prompted a discursive change in the organisation, now recognising certain links between human rights violations and the organisation of the Bahrain GP. Nevertheless, the only real action taken was forced by the ADHRB when they submitted the complaint to the UK National Contact Point for the OECD Guidelines, resulting in the F1 Human Rights Commitment.

Now the FOG includes in its Code of Conduct (CoC) a section regarding human rights and modern slavery. Nevertheless, they only refer to what has already been stated in their Human Rights Commitment. In this CoC, they also add that if “you believe that an individual’s human rights may be adversely affected, you must report it to the Compliance Team as soon as possible”. This compliance team is led by two legal counsels, notably without experience in human rights topics that also deal with other areas such as compliance, brand protection, human resources and administration functions. In fact, Sacha Woodward, one of the members of the compliance team, when asked in 2019 about the impact of F1 on human rights, stated that “we [FOG] don’t see ourselves as a political organisation. We just want to bring a great entertainment spectacle to as big an audience as possible to as many countries as we can reach”. This comment clearly shows the priorities of the FOG, profit over human rights, and tries to reinforce the idea that F1 is a bubble free from human rights violations. A change in this dynamic seems unrealistic at this point since the FOG is a sport business entity that seeks primarily economic profit, which Bahrain brings to it in spades.

The passivity of the FOG is not beyond reproach, but the position of the FIA is even more flagrantly disregarding human rights. Since 2011, the sport governing body has not taken any initiative or seriously addressed the human rights issues in Bahrain that CSOs have brought to its attention year after year. Although in recent years, some SGBs are adopting human rights policies (e.g., FIFA) or recognising the importance of their protection (e.g., IOC), the organisation that safeguards motorsports seems unwilling to take that road. This unwillingness was clearly shown by the new FIA president, who recently stressed that drivers should devote more time to driving and less to advocating for human rights problems. Nevertheless, we could be witnessing the end of this passivity, as some signs of change can be glimpsed recently. At the end of 2021, the World Council for Automobile Mobility and Tourism (WCAMT), the body responsible for all FIA issues affecting the automobile in society, hold their Annual General Assembly. In this meeting, Prince Zeid Ra’ad Al Hussein, former UN High Commissioner for Human Rights, and Rachel Davis, Vice President of the non-profit organisation Shift, presented a set of recommendations “to take the authoritative international framework – the United Nations Guiding Principles on Business and Human Rights – and apply it to the FIA’s reality”. These recommendations are the result of a process that FIA, in the context of its Diversity, Inclusion and Human Rights Strategic Framework, started to develop in 2020. The group of experts took a look at three spheres of FIA’s activity: FIA “as an employer and procurer of goods and services; as the regulator of world motorsport, and as a major player in mobility”. Unfortunately, both the Framework and the recommendations are not public, which underlines how FIA is still far from achieving the standards of transparency and integrity in governance that society has been demanding of SGBs.

The highlighted actions, or rather inactions, show a clear lack of will from both organisations over the last ten years. Small shoots seem to flourish recently, but it is still necessary for both organisations to commit more human and financial resources to address this problem and improve their governance standards.

V.              Conclusion. What needs to change in Formula 1?

The blog has illustrated how FIA and F1 have come under increasing public pressure from CSOs (and beyond) over the human rights impacts of the Bahrain Grand Prix. Civil society and drivers are increasingly demanding more profound changes in both organisations. Therefore, to conclude this piece, some basic recommendations to FIA and F1 are presented as a point to start with, all of them inspired by the report “For the game. For the world. FIFA and human rights” prepared by John Ruggie at the request of FIFA.

First of all, FIA, like FIFA, has to adopt a Human Rights policy. As of today, the FIA statutes only refer to human rights in article 1.2, which states that “the FIA shall promote the protection of human rights and human dignity […]”. A future human rights policy shall specify and expand on the implications of this commitment. It should not only address the internal organisation of FIA but also consider its business relationship with the FOG. In this context, the United Nations Guiding Principles on Business and Human Rights and OECD Due Diligence Guidance seem to be the most appropriate frameworks through which to articulate and implement the policy.

Secondly, as Ruggie mentions in the report, “even the best human rights policy is no more than words on paper without the necessary actions and incentives to make it part of everyday practice”. The Human Rights commitment adopted by the FOG in 2015 is a clear example of this discrepancy between words and deeds. Instead, both organisations should embed their human rights policies and commitments in their daily operations. Decision-making, especially those concerning the decision to host a Grand Prix in a particular country, should be subjected to detailed human rights impact assessments.

Lastly, once these actions have been adopted, it is necessary to adopt mechanisms to monitor their effects and effectiveness. Without it, the policies will not cover the new challenges and will not adapt to the changing circumstances of the countries hosting a Grand Prix.

For all of the above reasons, both FIA and the FOG must stop ignoring the CSOs working in Bahrain and the rest of the community demanding a change. All stakeholders must work for the common good: the protection of human rights.