Editor's note: Mark James is Professor of Sports Law at Manchester Metropolitan University and the author of a leading Sports Law textbook.

The opening days of the FIFA World Cup Qatar 2022 have already resulted in a number of issues of interest to sports lawyers and human rights lawyers, with FARE’s Piara Powar claiming that this is the most political major sporting event that he has attended. Both FIFA and the local organisers have been active in their suppression of expressions of support for LGBTQIA+ rights by players, fans and journalists alike, calling into question once again the legality of restricting free speech by sporting rules and regulations.

There have been two major flashpoints to date. First, seven European federations had asked FIFA for permission for their captains to wear armbands supporting the ‘OneLove’ campaign. FIFA’s response was to refuse, resulting in the German players covering their mouths for their pre-match photographs in protest at their being silenced. There are several grounds on which FIFA would seek to support its position:

•  Law 4.5 of the Laws of the Game prohibits any playing equipment from carrying any political, religious or personal slogans, statements or images.
• Regulation 4.3.1 of FIFA’s Equipment Regulations and Regulation 27.1 of the FIFA World Cup 2022 Regulations prohibits clothing or equipment that includes political, religious, or personal slogans, statements, or images, or otherwise does not comply in full with the Laws of the Game.
• Regulation 33.3 of the FIFA World Cup 2022 Regulations prohibits the display of political, religious or personal messages or slogans of any nature in any language or form by players and officials.
• Regulation 13.8.1 of FIFA’s Equipment Regulations states that for FIFA Final Competitions, the captain of each Team must wear the captain’s armband provided by FIFA (all Regulations available in the FIFA Legal Handbook 2022).

Although the DFB is considering a challenge to FIFA’s refusal to allow its captain to wear the OneLove armband, which would ultimately be heard before CAS, it is unlikely to succeed in the face of the strict requirements of the above Laws and Regulations. However, what could cause more difficulty for both FIFA and CAS is if the DFB frames its case as a challenge to the compliance of the rules that restrict players’ freedom of expression with Article 3 of FIFA’s Statutes, which states that ‘FIFA is committed to respecting all internationally recognised human rights.’ Article 3, together with the additional detail provided by FIFA’s Human Rights Policy, ensures that freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights are limitative rules that can be applied directly to FIFA’s activities, as has been argued by Bützler and Schöddert. Further, if the affected players and associations can define themselves as human rights defenders, then Article 11 of FIFA’s Human Rights Policy states that, ‘FIFA will respect and not interfere with the work of … human rights defenders who voice concerns about adverse human rights impacts relating to FIFA.’ Any challenge using this approach would be the first real test of the enforceability of the human rights protections to which FIFA claims to be committed. It would also be a test of CAS’s ability to require adherence to the human rights commitments made by ISFs and to prove that they are more than simple window-dressing.

Secondly, members of The Rainbow Wall, a contingent of LGBTQIA+ rights-supporting Welsh fans, were prevented from entering the Ahmed bin Ali stadium whilst wearing bucket hats incorporating a rainbow into its design. No explanation for why was given, however, FIFA and the local organisers would argue that openly supporting LGBTQIA+ rights with the aim of promoting legal change in a country where homosexuality is illegal is a political statement on apparel and therefore entry into the stadium wearing the rainbow hat is in breach of the Regulation 3.1.23 of the Stadium Code of Conduct. A similar argument could be used to justify preventing US journalist Grant Wahl from entering the stadium wearing a t-shirt incorporating a rainbow into its design and Danish journalist Jon Pagh from wearing the OneLove armband. However, it must be stressed that no such explanation for the prohibitions applied to these garments was provided to any of the affected fans or journalists. It must also be recognised that the opinion that promoting LGBTQIA+ rights is a political expression is highly contested. In a statement from FIFPRO, the opposing view was stated succinctly: ‘We maintain that a rainbow flag is not a political statement but an endorsement of equality and thus a universal human right.’

It is clear that, as with Rule 50 of the Olympic Charter, the chilling effect that FIFA’s Regulations have on players’ and fans’ freedom of expression is likely to be unlawful, as has been discussed at length both on this blog and on the Verfassungsblog Debate on Freedom of Expression in the Olympic Movement. Instead of revisiting these arguments, which are taken to apply to FIFA’s actions at Qatar 2022, two additional issues related to the FIFA Statutes are explored here.

Articles 3 and 4 of FIFA’s Statutes state that:

3 Human rights

FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.

4 Non-discrimination, equality and neutrality

4.1 Discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.

FIFA is a long-time supporter of pride events and in its press release for Pride Month 2022 stated:

[The] FIFA World Cup Qatar 2022™ will be a celebration of unity and diversity – a joining of people from all walks of life – regardless of race, ethnicity, religion, age, disability, sex characteristics, sexual orientation, gender identity and expression – everybody will be welcome.

Claims that all staff involved in the Qatar 2022 including public and private security forces, would be trained on how to accomplish their tasks in a non-discriminatory manner, seem not to have been operationalised effectively.

This begs the question whether FIFA is in breach of its own Statutes by refusing to allow players to express themselves freely on armbands and failing to protect fans’ freedom of expression by wearing rainbows. At the very least, FIFA should have ensured that a protective LGBTQIA+ regime in the stadiums and the fan zones during the World Cup was implemented to enable the ‘celebration of unity and diversity’ it claims that Qatar 2022 should be. FIFA’s actions in Qatar call into question its claims to be an inclusive and supportive leader on anti-discrimination and human rights, and is likely to see a backlash from the LGBTQIA+ community that it claims to support when it engages with Pride 2023; accusations of hypocrisy and virtue signalling are guaranteed.

With no resolution to the debate at the time of writing, Articles 3 and 4 could provide players and fans with the opportunity to demonstrate their support for human rights and anti-discrimination causes. At the Sochi 2014 Winter Olympics, Athlete Ally developed the ‘Principle 6 Campaign.’ Instead of criticising directly Russia's so called anti-gay laws, which are currently in the process of being extended, athletes promoted Principle 6 of the Olympic Charter, which at the time stated that, ‘Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.’ The eventual outcome of this campaign was the addition of sexual orientation to the list of characteristics protected by Principle 6. Unlike at Sochi 2014, there is no need to campaign for a change to either of Articles 3 or 4 of the FIFA Statutes; instead, activists want to ensure that they are being applied. An immediate response for both players and fans would be for them to quote specifically from Articles 3 and 4, as it would be extremely difficult for FIFA to claim that they are making political or personal statements when promoting FIFA’s own foundational values. A creative reminder of what FIFA claims to stand for could enable player and fan activism to continue throughout the tournament, and beyond, whilst affected players and associations can develop a compelling case for the restrictions on freedom of expression to be struck out by CAS, the Swiss Federal Tribunal and/or the European Court of Human Rights.

Mohamed Dahmane is a professional football player of French-Algerian origin, who has played for a variety of European clubs, including French club US Mauberge, Belgian club RAEC Mons and Turkish club Bucaspor. However, he will mostly be remembered as the player whose legal dispute with his former club (Belgian club KRC Genk) revived the debate on football players’ labour rights.  

Journalists wasted no time in comparing it to the Bosman case.[1] Fair enough, Dahmane and Bosman do show some striking similarities: the two cases concerned players employed by mediocre Belgian football clubs claiming their right to be treated as normal workers. Furthermore, in both cases the respective Courts met (to a large extend) the players’ demands. The Bosman case not only changed labour conditions for all footballers, it shook the whole transfer system. In Dahmane, the case is essentially about whether it is justifiable to have a special law that obliges professional football players who unilaterally break their players’ contract to compensate their club for up to 36 months of salary. After all, “normal” workers are only obliged to pay a 12 months of salary compensation in an identical situation. Whether the Dahmane case will have the same weight as Bosman depends on the effects of the judgment on footballers in Belgium, but also on the European football sector in general. Therefore, a close look at the ruling is needed to understand its potential consequences.

Dahmane signed a four-year contract with KRC Genk on 1 July 2007, he then unilaterally terminated the contract in January 2008 following a row with his coach. Due to the contract termination, KRC Genk demanded a compensation amounting to EUR 878.888,88. The demand was based on Articles 4 § 4 and 5 § 2 of the Law for Professional Athletes and the Royal Decree of 13 July 2004. Indeed, according to the Royal Decree, the compensation had to be equal to 36 months of salary. Dahmane disagreed with KRC Genk’s demands and argued that the compensation should be calculated in accordance with Article 40 § 1 of the general Labour Agreements Law. Pursuant to this Article the severance pay can only amount to a maximum of 12 months of salary.

In a judgment of 25 May 2009, the Labour Court (Court of first instance) concurred with the demands of KRC Genk and ordered Dahmane to compensate KRC Genk for EUR 878.888,88.

Dahmane placed an appeal with The Court of Labour arguing that Article 4 § 4 of the Law for Professional Athletes and the Royal Decree breached Articles 10 and 11 of the Belgian Constitution on equal treatment and non-discrimination.[2] KRC Genk, for its part, argued that the difference between labour agreements of professional footballers on the one hand and “normal” labour agreements on the other is based on the ‘specific character of labour agreements of professional footballers and the specific character of sport in general’. Thus, the ‘specificity of sport’ would imply a special status for sport, whereby ‘normal’ law (i.e. the general Labour Agreements Law) cannot be applied unabridged. KRC Genk highlighted that to achieve the objectives inherent to football, which include avoiding competition distortions and the preservation of the stability of participating sport clubs, certain specific measures, such as the Royal Decree of 2004, can be taken in order to safeguard the legal certainty of labour relationships in the sport sector.[3]

The Court of Labour dismissed the arguments raised by KRC Genk, and held that the Royal Decree applies to all professional sports, not only to football, thereby denying validity to RKC Genk’s claims on the specificity of football.[4]

The Court agreed with KRC Genk that sport exhibits certain characteristics that can deviate from other labour relationships between employer and employee. However, the Royal Decree in question did not mention the specificity of sport in its text, nor does it provide any objective justifications as to why separate rules regarding compensation after a unilateral termination of a labour contract is necessary for the sport sector. Furthermore, the pursuit of financial profits, and the importance of preserving a fair competition have to be taken into account. Those economic objectives are not specific to the sport sector. Therefore, the Court saw no valid reason justifying a separate Royal Decree, when sport’s economic dimension can be equally covered by existing legislation. In other words, the same laws should be used to achieve the same objectives.[5]

As regards KRC Genk’s view that some rules preventing richer clubs from buying all the good players from smaller clubs, thereby distorting competition, are justifiable, the Court found that to be incorrect. Even though it is true that football’s transfer system is different from “normal” movement of workers, a distinction needs to be made between buying and selling of players on the one hand, and the unilateral termination of a player’s contract on the other hand. Here again the Court found the breach of the Constitutional Articles on equal treatment and non-discrimination based on the specificity of the football transfer system was not objectively justified in the Royal Decree.

The Court reminded the parties that the transfer system, which only allows two periods a year for clubs to buy and sell players, would limit the possibility for professional footballers to change clubs. Moreover, it highlighted that compensation equal to 12 months of salary comprises two transfer periods, and should therefore not be seen as unreasonable. Lastly, the Court took into account that the average career of a professional sportsman is relatively short (12 years according to KRC Genk and six to eight years according to Dahmane). A compensation amounting to 36 months of salary would, for many professional players, amount to 1/3 of the player’s revenue during his career and should therefore be deemed unjustifiable.[6]

Hence, the Court considered that a Royal Decree imposing a compensation of 36 months of salary on a player breaching his contract is disproportionate. Furthermore, the Court found the Royal Decree unjustifiable under the Constitutional principle of equal treatment and non-discrimination.

Dahmane revives a debate that has occupied academics in the fields of sports law, labour law and other fields of law for many decades. Is sport special and do its specificities oblige the European and national legislators to make laws that answer the specificities of sport? Should professional athletes be treated different from normal workers because sport is “special”? After Bosman, no transfer fees needed to be paid for players whose contract had ended and no limitations on the number of EU nationals were allowed to be imposed by the football clubs. In other words, the European Court of Justice (ECJ) found professional footballers to be very much like normal workers. Similarly, the Dahmane case lead the Belgian Court of Labour to deny any difference between professional athletes and normal workers regarding compensation after a unilateral termination of the labour contract. Even though Dahmane, as appellant, had asked the Court to raise a preliminary question to the ECJ on the compatibility of the law with the free movement of workers[7], the Court decided the case under Belgian law only.[8] It is therefore highly unlikely that Dahmane will have the same transnational effect as Bosman and mass unilateral contract terminations by professional athletes across the EU are not to be expected. 

Dahmane could set a precedent and encourage professional players in Belgium to simply break their contract, move to another club and pay compensation equal to 12 months of salary. This would be the worst-case scenario for Belgian clubs, since a compensation equal to 12 months of salary will nearly always be inferior to a transfer fee. On the other hand, mass unilateral contract terminations by footballers in Belgium would vindicate the need for specific regulation for football clubs.

In many ways the Belgian Court of Labour has “passed the ball” back to the Belgian legislator. Should the Belgian legislator feel that professional athletes, or footballers for that matter, have to be treated differently compared to normal workers then it could always decide to adopt specific laws or Royal Decrees for professional athletes. However, Dahmane will serve as a warning that these separate laws or Royal Decrees will need proper objective justifications as to why professional athletes are to be treated differently.

[1] See for example: Zaak-Dahmane krijgt allure van zaak-Bosman

[2] Arrest A.R. 2009/AH/199 (6 may 2014) Sub II, §1

[3] Ibid, Sub III §6

[4] Ibid, §7

[5] Ibid, §6

[6] Ibid, §7

[7] Ibid, Sub II, §1

[8] Ibid, Sub III §12