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

From Veerpalu to Lalluka: ‘one step forward, two steps back’ for CAS in dealing with Human Growth Hormone tests (by Thalia Diathesopoulou)

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception?

 

Starting with the basics: the Human Growth Hormone (hGH) Test and the scientific controversies

The hGH is a hormone synthesized and secreted by cells in the anterior pituitary gland located at the base of the brain.[2] It is an endogenous substance, i.e. naturally produced in humans such as testosterone, and is necessary for skeletal growth, recovering cell and tissue damage. When released by the liver, hGH bonds to receptors in targeted cells to stimulate an increase in the levels of insulin growth factors, which stimulate growth and development of the cells.[3] It is noteworthy that the level of total hGH concentration varies in a human’s blood naturally and substantially over the course of the day.[4] High concentrations of hGH are considered abnormal and associated with anabolic substances.

Although there is no scientific consensus on whether higher levels of hGH actually enhance performance[5], anti-doping authorities have long been trying to detect and prevent the use of rhGH. The first blood test for hGH was introduced only at the 2004 Olympic Games in Athens. The major challenge in developing a doping test for hGH has been the uncertainty and variability in data used to establish the so called decision limits, namely a cut-point to assess whether an athlete’s blood higher hGH levels are natural or a result of doping. In 2010, the World Anti-Doping Agency (WADA) published its guidelines for the hGH test, including the test’s decision limits.[6] The testing is done through the use of two distinct sets of reactive tubes coated with two combinations of antibodies, which are referred to as Kit1 and Kit2.[7] The ratio of concentration of rhGH versus other natural derived isoforms of hGH are measured with the Kits which are developed to detect the administration of exogenous hGH. Under the 2010 Guidelines, the decision limit values as regards to male athletes are 1.81 for Kit 1 and 1.68 for Kit 2. Any value above these limits triggers the report by the laboratory of a positive test.

Nevertheless, since its introduction, the WADA hGH test has raised multiple concerns in the scientific community with regard to the lack of reliable and valid scientific knowledge about factors other than doping that might affect the relationships upon which the test relies.[8] The varying levels of all types of hGH make it difficult to establish an accurate baseline measurement for natural hGH values and rations. For instance, hGH can be affected by factors such as gender, age, exercise, body consumption, time of day and stress. Also psychological or pathological factors may affect the ratio. In view of the lack of significant knowledge with regard to the factors that may result in suspicious hGH values, it is highly possible that athletes are mistakenly labelled as ‘cheaters’.

Although the decision limits of hGH tests are still being debated, in the last few years, the CAS has been called to strike the right balance between the need for fairness in sport and the risk of devastating an athlete’s life, career and reputation on the basis of unsound scientific assessments. Crucially, it will be demonstrated that the CAS panels adopted a rather erratic approach when interpreting the hGH decision limits, adding legal uncertainty to the current scientific uncertainty.

 

The Veerpalu ‘no doping sanction in absence of scientific validity’ threshold

On 14 February 2011, Andrus Veerpalu, the Estonian Olympic Gold Medalist in cross-country skiing, was tested positive for hGH. On 12 September 2011, he appealed the three-year doping ban for use of hGH imposed by the International Ski Federation (FIS) and he became the first to challenge the validity of hGH tests before the CAS. With its decision on 25 March 2013, the CAS stunned the anti-doping world: it overturned Veerpalu’s drug suspension on the grounds that the decision limits of the hGH test could not be reliably verified.

But, how did the CAS reach this striking ruling? First and foremost, the CAS did not question the hGH test itself, nor the scientific validity of the analytical method used to detect rhGH. The Court’s criticism rather focused on the lack of sufficient scientific validity in defining the decision limits set by WADA beyond which laboratories should report the presence of rhGH.[9] Namely, the Court questioned the use of statistics in interpreting the hGH test results and detected three procedural flaws: (1) inconsistencies in the studies conducted, (2) the lack of peer review on WADA hGH studies and (3) the insufficient evidence submitted during the proceedings.[10] In particular, as the studies on hGH are concerned, the panel concluded that the population study that had been conducted to establish the decision limits of the hGH test was inadequate.[11] In view of the procedural flaws detected in the statistical analysis conducted by WADA to establish the hGH baseline, the panel did not consider itself comfortably satisfied as to the reliability of the decision limits for the hGH test, and acquitted Veerpalu.[12]

To reverse a doping case and openly question WADA’s hGH test decision limits was an unprecedented move in light of the CAS’ usual hands-off approach when dealing with WADA policies. The Veerpalu award was not only a huge blow to WADA hGH tests, but it also triggered significant rethinking of the standards applicable in the anti-doping fight. As an immediate consequence of the award, all reporting of adverse analytical findings for rhGH were frozen pending the completion of new studies on the determination of hGH test decision limits based on a bigger population-based study. Secondly, a new rebuttable presumption of the scientific validity of the analytical methods and decision limits for rhGH was introduced in the revised WADC 2015 at Article 3.2.1. [13] The new rule shifts the burden of establishing flaws in the scientific validity of analytical tools on the athlete’s shoulders.[14] Interestingly enough, the presumption applies only to methods and decisions limits that are scientifically reliable, meaning they must have been approved by WADA after consultation with the relevant scientific community and subject to peer review.[15] At the same time, the provision intends to set new procedural requirements in the judicial review of the analytical methods or decision limits used by WADA. Such a review is subject (1) to a mandatory notice to WADA of the challenge and (2) to the right for WADA to intervene in the CAS proceedings and request from the CAS to appoint an appropriate scientific expert to assist the panel in the evaluation of the challenge.[16]

More importantly, the Veerpalu award sets an important threshold in doping cases – as well as in every case where the CAS has to deal with scientific evidence: the need for scientific validity and systematic transparency before the imposition of any sanction. This development in conjunction with the new rule of evidence of Article 3.2.1 WADC 2015 can be considered as paving the way for a fairer and more realistic chance for Athletes to successfully rebut a doping sanction.[17]

 

Sinkewitz hGH case: A surprising twist to the Veerpalu saga

The Veerpalu case soon inspired athletes facing anti-doping sanctions. The German cyclist Patrik Sinkewitz and Lallukka, two athletes detected positive for rhGH, attempted to overturn their doping ban based on the Veerpalu precedent. However, the CAS begged to differ.

In the Sinkewitz case, the panel justified its deviation from the Veerpalu award by introducing the ‘borderline’ criterion. Unlike Veerpalu, Sinkewitz’s samples were far higher than the WADA decision limits and, as a result, he could not benefit from the uncertainty of a borderline situation.[18] In view of this, Sinkewitz was found ineligible for 8 years, since it was his second anti-doping rules violation. More importantly, the panel relied on a different evaluation of the hGH test, contradicting thereby the Veerpalu reasoning. According to the Sinkewitz panel, the decision limits defined in WADA Guidelines represent mere means of evidence and can serve as a recommendation to the laboratories, without being, however, mandatory and decisive for determining whether an anti-doping rule violation occurred.[19] This practically means that even in the instance of a ratio below the decision limits or in a borderline situation like the Veerpalu one, the panel could be ‘comfortably satisfied’ by expert evidence identifying rhGH irrespectively of the validity of the decision limits.[20] Contrary to the Veerpalu panel which seemed to rely on a perception of the hGH test as a quantitative analysis applicable to Threshold Substances covered by the Technical Document on Decision limits, the Sinkewitz panel - by characterizing the decision limits as a mere technical criterion for the identification of rhGH - seemed to perceive the hGH test analysis as a qualitative one, implying that more criteria are taken into account.[21]

 

Lallukka hGH case: Reconciling a conflicting jurisprudence ?

The Sinkewitz panel’s pattern with regard to the hGH tests decision limits was later followed by the Lallukka panel. The latter validated the Sinkewitz conclusion that the decision limits have no legal status and it further used this argument in order to rebut Lallukka’s objection about the retroactive application of legal rules. Since decision limits are not rules as such, but rather means of evidence figured as ‘guidelines’, the rule against retroactivity cannot apply to evidentiary matters.[22] However, it can me remarked that as in the Sinkewitz case the CAS chose to abstain from any criticism with regard to WADA’s practice to incorporate the decision limits into guidelines, instead of enshrining them directly in a mandatory document.[23]

Furthermore, the deviation from the Veerpalu precedent was based on the evidence provided in two independent studies mandated by WADA, i.e. the Mc Gill Study and a study from Prof Jean-Christophe Thalabard, which were merged into a peer- reviewed joint publication paper. According to the panel, the studies responded adequately to the concerns expressed in the Veerpalu case and established the decision limits with a 99.99% specificity. As a result, the panel was comfortably satisfied as regards the reliability of the hGH tests decision limits and Lalluka could not benefit from the Veerpalu precedent.[24]

Nevertheless, although at a first glance being in line with the Sinkewitz award, the Lallukka award added an interesting twist regarding the starting point of the athlete’s suspension. In fact, the panel by reference to the principle of fairness concluded that the athlete’s disqualification would start only from June 2014 onwards, when WADA was in a position to answer in a documented manner, i.e. through the peer-reviewed joint publication paper, the issues raised in the Veerpalu case.[25] Thus, the panel seems to apply the ‘golden rule’ established in the Veerpalu case that a doping sanction could be imposed only on the basis of reliable scientific knowledge. Thereby, creating a sort of legal bridge between the competing lines of CAS jurisprudence and paving the road to a fair reconciliation preserving the rights of the athletes.

 

Conclusion: Should Veerpalu Stand?

The Veerpalu ruling was a landmark case for the CAS in doping matters and particularly concerning the hGH test. It set a clear standard for future CAS panels: when exercising their daunting task of reviewing decisions based on complex scientific assessments, they need to ensure that these assessments rely on transparent and rigorous scientific practice of the highest quality. The Sinkewitz and Lallukka cases, however, unveiled an unfortunate (partial) retreat from this position. This is not without consequence regarding the credibility of the CAS and the anti-doping fight. The fight for clean sport must be based on the safest scientific standards possible and, to this end, these standards should stay subjected to full CAS scrutiny. With the new WADC 2015 and the rebuttable presumption of scientific validity for analytical methods and decision limits it enshrines, more intriguing legal challenges against the hGH tests are likely to be brought before the CAS. One may wonder whether this new regime will be advantageous for athletes or whether it is an ‘illusion of fairness’, since it seems highly unlikely that athletes without WADA’s extensive network of laboratories and resources can prove the unreliability of the hGH ratios.[26] Whatever the future brings, one thing remains certain in the anti-doping landscape: the CAS’ absolute reluctance to openly question WADA rules belongs to the past.

 



[1] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka (20 November 2014)

[2] CAS. 2011/A/2566, Veerpalu v. FIS, 25 March 2013, para 83

[3] J Coleman and J Levien, ‘ The burden of proof in endogenous substance cases’ in M McNamee and V Moller (eds) Doping and Anti-Doping Policy in Sport- Ethical, legal and social perspectives (Routledge 2011) 27-49, 37.

[4] K Fischer and  D Berry, ‘Statisticians introduce science to International Doping Agency: The Andrus Veerpalu case’ , 5

[5] For a critical approach on hGH effect on an athlete’s performance, see A Hoffman and others ‘Systematic review: the effects of growth hormone on athletic performance’ (2008) Annals of Internal Medicine, 747-758

[6] To be noted that there is no material change to this approach in the 2014 Guidelines.

[7] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, para 9

[8] J Coleman and J Levien (n 3), 39.

[9] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’

(19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[10]  CAS. 2011/A/2566, Veerpalu v. FIS (n 2), paras 204-206.

[11] Ibid, para 206.

[12] Ibid

[13] WADC 2015, Article 3.2.1: “Analytical methods or decision limits approved by WADA after consultation within the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS, on its own initiative, may also inform WADA of any such challenge. At WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the panel in its evaluation of the challenge. Within 10 days of WADA ’s receipt of such notice, and WADA ’s receipt of the CAS file, WADA shall also have the right to intervene as a party, appear amicus curiae or otherwise provide evidence in such proceeding.”

[14] M Viret, ‘How to make science and law work hand in hand in anti-doping’ (2014) Causa Sport : die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft, Issue 2, 106

[15] WADC 2015, Article 3.2.1 (n 13)

[16] Ibid

[17] A Rigozzi, M Viret and E Wisnosky  ‘Does the World Anti-Doping Code Revision Live up to its Promises? – A preliminary survey in the main changes in the final draft of the 2015 WADA Code, Jusletter of 11  November 2013

[18] CAS 2012/A/2857 Nationale Anti-Doping Agentur Deutschland v. Patrick Sinkewitz (24 February 2014), para 204.

[19] Ibid, para 192

[20] WADC, Article 3.2: “Facts related to anti-doping rule violations may be established by any reliable means, including admissions.”

[21] M Viret and E Wisnosky (n 9)

[22]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 112-116

[23] M Viret and E Wisnosky (n 9)

[24]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 98-99

[25] Ibid, para 137

[26] J Coleman and J Levien (n 3), 39.

Comments (1) -

  • Michal

    3/2/2015 7:25:34 PM |

    Good to see such an informative article. Thank you.

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Asser International Sports Law Blog | FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

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

FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

Editor’s note: Tomáš Grell comes from Slovakia and is currently an LL.M. student in Public International Law at Leiden University. He contributes also to the work of the ASSER International Sports Law Centre as a part-time intern.

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] jointly by the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. 

Based on the above, this two-part blog seeks to provide a general overview of the respective proceedings before the Court, focusing primarily on the key legal arguments regarding FIFA's responsibility for human rights abuses committed in the territory of a State being charged with organization of the World Cup. The first part will briefly describe the dire humanitarian conditions for migrant workers in Qatar following the country's successful bidding contest in 2010 and summarize the central claims advanced by the Plaintiffs. The second part will shed its light on the reasoning which led the Court to reject the Plaintiffs' claims. It will also examine the conclusions reached by the Court in context of the responsibilities of transnational corporations for extra-territorial human rights abuses they might have directly or indirectly triggered.

 

Human rights situation in Qatar 

In conformity with its Constitution[3] and international law[4], Qatar as a sovereign State shall ensure that human rights are respected within its jurisdiction. Qatar holds the world's highest ratio of immigrants to citizens, the latter representing only 10 % of the country's overall population which is estimated at 2,000,000. It has been suggested that the number of male migrant workers in Qatar has more than doubled since 2010, from 800,000 to approximately 1,700,000 at present.[5] According to the report published by the International Trade Union Confederation, more than 7,000 workers might die before the new stadiums finally open their gates for spectators in late November 2022. Regardless of the large volume of construction works which have to be done before the World Cup in Qatar actually kicks off, such figure simply cannot be ignored. To put this into some perspective, deaths of eight workers had been reported shortly before the start of the latest FIFA World Cup in Brazil. 

The vast majority of alleged human rights violations in Qatar stems from domestic labour law regulation which, until very recently, prescribed the so-called kafala system. Under the system, foreign workers are tied to their employers or sponsors, known as kafeels, that retain the final word on their legal residence in Qatar. Should a foreign worker wish to change his or her job within the country, an explicit consent is required from the kafeel. In this regard, François Crépeau, United Nations Special Rapporteur on the Human Rights of Migrants, characterized the kafala system as ''a source of abuse'' and carried on to conclude that ''there is no valid justification for maintaining this system''. In a similar vein, several non-governmental organizations condemned the kafala system. For instance, Amnesty International has identified eight particular ways in which some migrants working on the refurbishment of the Khalifa International Stadium in Doha are being exploited, ranging from forced labour to appalling living conditions. The nature of the kafala system could well be illustrated against the background of Zahir Belounis' case, a French-Algerian football player and former captain of Qatari club El Jaish. After his employment contract had been prematurely terminated by El Jaish, Belounis brought legal action against the club's directors[6] for unpaid wages. As a counteraction, the Qatari club refused to grant him an exit visa and, as a result, he remained trapped in the country without income for more than two years. However, there is a significant difference between the circumstances of Mr. Belounis' case and those migrants who are currently working on construction sites. While the former was in a position to pursue legal redress, the latter normally lack the necessary financial resources to do so. 

As regards the proceedings under scrutiny, the Plaintiffs contend that the kafala system violates Qatari domestic law, Swiss law and international labour and human rights law.[7] In particular, they argue that Qatar facilitates forced labour[8] by: (i) the employer's control over residence permits; (ii) prohibiting workers to switch employer; (iii) allowing abusive contracts; (iv) allowing high recruitment fees; (v) not effectively opposing passport confiscation; and (vi) the lack of effective redress and legal enforcement of the protection of workers' rights.[9] Given that their passports are routinely being retained[10], migrant workers are also constrained in their freedom of movement.[11] Owing to the fact that Qatari domestic law prohibits migrant workers from organizing in trade unions, their freedom of association[12] is virtually non-existent.[13] Furthermore, the Plaintiffs invoke[14] the violation of the fundamental right not to be discriminated against[15] and the right to an effective remedy.[16] 

In response to public outrage generated by the kafala system, Qatari government has been recently compelled to introduce certain reforms to its labour laws. Nonetheless, the ILO Committee of Experts on the Application of Conventions assumes that the respective changes will have little impact on observance of human rights in relation to migrant workers residing in Qatar. The ILO has already notified Qatar that, should not the humanitarian conditions for migrant workers be ameliorated before March 2017, it will subsequently launch a Commission of Inquiry. It is important to note, however, that the ILO's enforcement mechanisms are rather weak.[17]

 

Linkage to FIFA's responsibility 

The previous section has demonstrated the existence of reasonable doubts regarding Qatar's compliance with its human rights obligations. In order to hold FIFA accountable for Qatar's failure to respect human rights, a linkage needs to be established between FIFA's conduct and the respective violations occurring in the Gulf country. This section takes a closer look at how the Plaintiffs, from a legal point of view, strive to establish such linkage in their lawsuit. 

Pursuant to Article 3 of the 2016 FIFA Statutes, FIFA commits itself to preservation of ''all internationally recognised human rights.'' Article 4 thereof provides that ''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 supports its commitment to protect and promote human rights also by communicating its visions, such as the one to build a better future for all through football. That being said, the Plaintiffs argue that FIFA's obligation to respect human rights does not flow only from its internal regulations. In their view, FIFA shall bear responsibility primarily under Swiss law and (to a certain extent) also under international law.

 

FIFA's responsibility under Swiss law 

The Plaintiffs assert that Swiss tort law applies to the present case by virtue of the choice-of-law rules set forth in the Swiss Act on Private International Law ('IPRG').[18] In respect of FIFA's responsibility under Swiss tort law, the Plaintiffs' core argument rests on the so-called endangerment principle. According to this principle, a person that brings about a dangerous situation shall take the necessary precautions in order to prevent potential harm. Applied to the case at hand, FIFA's responsibility emanates primarily from its decision to award the World Cup to Qatar without simultaneously demanding that the country gets rid of the kafala system. The Plaintiffs firmly state that FIFA has the power to make such demands from World Cup-hosts.  

With regard to the strong position that FIFA holds vis-à-vis World Cup-hosts, the key features of the bidding procedure and subsequent coordination between FIFA and the elected country require further elaboration. Article 37 of the 2010 FIFA Statutes stipulates that ''the Organising Committee for the FIFA World Cup shall organise the FIFA World Cup in compliance with the provisions of the regulations applicable to this competition, the List of Requirements and the Organising Association Agreement.''[19] This Organising Association Agreement is signed with all countries (their national football associations) that wish to participate in the selection procedure. It contains the List of Requirements. The underlying purpose of such documentation is to ensure that potential World Cup-hosts are prepared to abide by FIFA's requirements in case they are eventually selected.[20] For example, the Organising Association Agreement concluded between FIFA and the South African Football Association ahead of the 2010 FIFA World Cup comprises a variety of requirements concerning, inter alia, infrastructure, security, broadcasting rights, intellectual property rights or financing. It is critical to note, however, that human rights demands are conspicuously absent from the agreement in question. The said agreement explicitly provides that ''FIFA owns the championship and all rights relating thereto on an exclusive worldwide basis, including all organisation, marketing, broadcast and other rights to the matches and other events.'' The Plaintiffs categorize the FIFA World Cup as 'take-it-or-leave-it' deal, claiming that host States are not in a position to negotiate about the requirements imposed by FIFA.[21] Indeed, the fear of losing the privilege to organize the prestigious FIFA World Cup serves as a significant impulse for World Cup-hosts to adhere to FIFA's standards. The Plaintiffs further note that FIFA uses its tremendous influence to force host States to modify their domestic laws for the duration of the tournament. In this regard, they particularly refer to the well-known 'Budweiser Law' – a law enacted by Brazil in the run-up to the 2014 FIFA World Cup which essentially allowed beer sales at match venues despite the fact that the sale of alcohol had been prohibited in Brazil's stadiums for nearly 10 years. 

Alternatively, the Plaintiffs put forward that, being aware of Qatar's unwillingness or inability to improve the human rights situation in the country, FIFA should have excluded Qatar from the bidding procedure.[22] Examples like that of Indonesia which was ruled out from the World Cup selection procedure because it did not provide sufficient government guarantees, demonstrate that FIFA possesses the power to take such action. In addition, the Plaintiffs suggest that FIFA may suspend a member in line with its Statutes.[23] As recently as 28 October 2016, Guatemala was suspended from international football due to the refusal of its national football federation ('FEDEFUT') to recognize the mandate of a normalisation committee established by FIFA predominantly in order to bring the FEDEFUT internal regulation in line with the FIFA Statutes. One of the most prominent cases of suspension dates back to the summer of 2014 when the FIFA Emergency Committee suspended the Nigeria Football Federation on account of government intervention. Earlier precedents show that FIFA had suspended its members also by reasons of negative human rights record (South Africa during the apartheid era or former Yugoslavia during the period of war in Balkan).[24] 

The Plaintiffs further maintain that FIFA's responsibility under Swiss tort law is also triggered by its ongoing failure to improve the plight of migrant workers trapped in Qatar by not demanding the Gulf country to efficiently set aside its controversial labour laws.[25]

 

FIFA's responsibility under international law 

The lawsuit filed with the Court refers to soft law provisions enshrined in the Guiding Principles on Business and Human Rights ('UN Guiding Principles') unanimously endorsed by the United Nations Human Rights Council in 2011. These principles address the corporate responsibility to respect human rights. United Nations High Commissioner for Human Rights, Mr. Zeid Ra'ad Al Hussein, described the UN Guiding Principles as ''the global authoritative standard, providing a blueprint for the steps all states and businesses should take to uphold human rights.'' Although the said principles do not constitute a binding source of international law, FIFA has already communicated its positive commitment to abide by these principles. At the same time, FIFA has announced that, starting from the 2026 FIFA World Cup, bidding regulations would incorporate human rights-related criteria. That being said, coupled with FIFA's large-scale commercial activities, the UN Guiding Principles seem to be more than a reasonable point of reference in this regard. 

In April 2016, Professor John Ruggie, the author of the UN Guiding Principles, completed the report on what it would entail for FIFA to embed human rights compliance across its global operations. His team has elaborated 25 specific recommendations which might be roughly summarized as follows: (i) adopt a clear and coherent human rights policy; (ii) embed respect for human rights; (iii) identify and evaluate human rights risks; (iv) address human rights risks; (v) track and report on implementation; and (vi) enable access to remedy. Likewise the lawsuit, the respective report articulated that FIFA shall use ''every opportunity to press host countries to support [FIFA's] new statutory human rights commitment.''

 

Conclusion 

In light of the foregoing considerations, the Plaintiffs asked the Court to oblige FIFA to redress the persistent human rights violations of migrant workers by compelling the competent Qatari authorities to bring about the necessary change. As an alternative, they requested the Court to declare the mere illegality of those human rights abuses. The monetary compensation sought by the Plaintiffs amounted to relatively modest sums.[26] 

In sum, the lawsuit under examination in this blog raises a number of remarkable challenges which would undoubtedly deserve a fair share of attention. The portrayal of FIFA as a stronger party in its relations with World Cup-hosts underscores the blurring distinction between the role of sovereign states and non-state actors in contemporary international society.[27] In fact, it raises crucial questions from the perspective of international legal theory. How is it possible that transnational corporations can interfere with the principle of state sovereignty? Is it only the consent of the state concerned that is involved? Where does this cornerstone principle of international law have its limits and to what extent is it relevant in current international relations? Although the Court does not give clear-cut answers to these questions, its position with respect thereto could be inferred from its ruling. This is exactly what remains to be tackled in the second part of this blog that will be published in the coming days. 

 


[1] Our most sincere acknowledgement goes to Prof. Liesbeth Zegveld who has kindly provided us with the relevant documentation and information that is subject to analysis in the present blog.

[2] Ruling of the Commercial Court of the Canton of Zurich, HG160261-O, 3 January 2017

[3] The Permanent Constitution of the State of Qatar, 2004, Art. 6

[4] Qatar is a State Party, inter alia, to the following international human rights law treaties: (i) Arab Charter on Human Rights; (ii) International Convention on the Elimination of All Forms of Racial Discrimination ('CERD'); (iii) Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment; or (iv) United Nations Convention against Transnational Organized Crime and its accompanying Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (also referred to as the Palermo Protocol). In addition, Qatar is a Member State of the International Labour Organization ('ILO') and has ratified six out of the eight ILO Conventions.

[5] Lawsuit submitted to the Court by the Plaintiffs on 8 December 2016, para. 97             

[6] In fact, some of the club's directors were high-ranked members of Qatari government

[7] Supra note 5, para. 259

[8] See the ILO 1930 Convention concerning Forced or Compulsory Labour (No. 29); the ILO 1957 Convention concerning the Abolition of Forced Labour (No. 105)

[9] Supra note 5, para. 160

[10] Ibid., para. 231

[11] See Art. 13 of the Universal Declaration of Human Rights; Arts. 26, 27 of the 2004 Arab Charter on Human Rights; Art. 5 (i) (d) CERD

[12] See Arts. 20, 23 (4) of the Universal Declaration of Human Rights; Arts. 24, 35 of the 2004 Arab Charter on Human Rights; Art. 5 (e) (ii) CERD; the ILO Declaration on Fundamental Principles and Rights at Work

[13] Supra note 5, para. 232 ff.

[14] Ibid., para. 239 ff.

[15] See the 1958 ILO Convention concerning Discrimination in Respect of Employment and Occupation; Art. 7 of the Universal Declaration of Human Rights; Arts. 3, 11 of the 2004 Arab Charter on Human Rights; Art. 5 CERD

[16] See Art. 8 of the Universal Declaration of Human Rights; Arts. 12, 22, 23 of the 2004 Arab Charter on Human Rights

[17] A. Erfani, 'Kicking Away Responsibility: FIFA's Role in Response to Migrant Worker Abuses in Qatar's 2022 World Cup', (2015) 22 (2) Jeffrey S. Moorad Sports Law Journal 623, at 641

[18] See Art. 133 (2) IPRG

[19] Reference is being made to the 2010 FIFA Statutes since they were in force at the time when the World Cup was awarded to Qatar (i.e. on 2 December 2010). Art. 37 of the 2010 FIFA Statutes is now reflected in Art. 43 of the 2016 FIFA Statutes.

[20] Supra note 5, para. 75

[21] Ibid., para. 267

[22] Ibid., para. 285

[23] See Art. 14 of the 2010 FIFA Statutes (now reflected in Art. 16 of the 2016 FIFA Statutes)

[24] Supra note 5, para. 288

[25] Ibid., para. 293

[26] Supra note 2, p. 2-3

[27] H. Meier, B. García, 'Protecting Private Transnational Authority against Public Intervention: FIFA's Power over National Governments', (2015) 93 (4) Public Administration 890

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