On Wednesday 26 May 2021 from 16.00-17.00 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fifth Zoom In webinar on the Court of Arbitration for Sport (CAS) from the perspective of the European Court of Human Rights (ECtHR).

We have the pleasure to be joined by Prof. Helen Keller, former Judge at the ECtHR and a prominent dissenter to the majority’s ruling in the Mutu and Pechstein case.

The ECtHR decision in the Mutu and Pechstein case rendered on 2 October 2018 is widely seen as one of the most important European sports law rulings. It was also the first decision of the Strasbourg court dealing with a case in which the CAS had issued an award. The applicants, Adrian Mutu and Claudia Pechstein, were both challenging the compatibility of CAS proceedings with the procedural rights enshrined in Article 6(1) of the European Convention on Human Rights (ECHR). The court famously declined to conclude that the CAS lacked independence or impartiality, but did find that, insofar as Claudia Pechstein was concerned, she was forced to undergo CAS arbitration and, therefore, that CAS proceedings had to fully comply with the procedural rights guaranteed in the ECHR. In particular, the court held that the refusal by CAS to hold a public hearing, in spite of Claudia Pechstein’s express request, was contrary to Article 6(1) ECHR. Beyond this case, as highlighted by the recent decision of Caster Semenya to submit an application to the ECtHR, the decision opens the way for a more systematic intervention of the Strasbourg court in assessing the human rights compatibility of CAS awards and more broadly of the transnational sports regulations imposed by international sports governing bodies.

Prof. Helen Keller will discuss with us the implications of the ECtHR’s Mutu and Pechstein decision and the potential for future interventions by the court in the realm of the lex sportiva.

The webinar will take the form of an interview followed by a short Q&A open to the digital public. 

Please note the discussion will NOT be recorded and posted on our Youtube channel. 

Register HERE!

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. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

The 21^st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played.

The Warm-up: Preparing for the Game

Even though the recently published update by FIFA’s Human Rights Advisory Board compliments FIFA on its increased efforts for tackling human rights issues related to this year’s World Cup, it is no secret that thousands of workers were exposed to severe human rights violations while working on World Cup construction sites in Russia.[1] Human rights groups such as Human Rights Watch (HRW) extensively reported on the structural exploitation that workers were facing, including unsafe working conditions leading to numerous injuries and the death of 17 workers, forced illegal work due to lack of employment contracts, and cases of non-payment or serious delays in payment of wages.  Those workers that dared to file a complaint were threatened with retaliation and non-payment of wages.[2] Furthermore, journalists and human rights advocates that tried to report on these cases have been intimidated, denied entry into the country, or even arrested while carrying out their investigations.

Blaming the occurrence of these human rights violations on Russia being this year’s World Cup’s host would ignore the fact that these violations are recurring in the context of mega-sporting events (MSEs) like the Summer or Winter Olympic Games or the World Cup. To a certain extent, these events heighten pre-existing human rights risk in the host country and thereby increase the likelihood for violations to occur. Thus, numerous stories of exploitation of migrant workers have been documented in relation to the construction works for the 2022 World Cup in Qatar. Furthermore, worker’s rights are not the only rights that are at risk during the delivery of MSEs. Other common types of human rights abuses associated with hosting MSEs are cases of forced displacement, infringements of participatory rights, and infringements of freedom of expression and the right to protest.[3] Shortly before and during these events, reports on incidents of excessive use of force by local police and private security forces, as well as arbitrary arrest and criminalization of homeless people and street children are also commonplace.[4]

The First Half: Establishing Responsibility

The key challenge in addressing these cases is to identify the actor and actions responsible for these harmful outcomes. However, MSEs like the FIFA World Cup are jointly organized and staged by a mix of public, private, national, and international actors. International sports bodies, like FIFA or the International Olympic Committee (IOC), set the terms and conditions under which these events can be hosted. Host countries agree to these conditions by submitting government guarantees and declarations and by adopting special event-related legislation. Furthermore, local and regional authorities issue permits and give orders to enable and facilitate event-related operations. The local organizing committees are responsible for living up to the conditions set by the sports bodies and for hiring the necessary contractors. These range from local to international firms, from city planners and logistic experts, to food suppliers and construction firms.[5] Further companies that profit from the MSE-business are international broadcasting firms and recruitment agencies. The financing of these events is secured through national and international corporate sponsors, such as McDonald’s and Budweiser for this year’s FIFA World Cup.[6]

The intuitive thing to do from a human rights perspective would be to call upon the responsibility of Russia as the host country to address these abuses, since states are not only responsible for respecting, protecting and fulfilling human rights but also for preventing third parties from abusing human rights on their territory. However, this would ignore the real issue at stake: the fact that MSE-related human rights abuses are the result of complex collaboration between multiple actors involved in delivering these events. In the case of exploitation of workers on World Cup construction sites in Russia, construction companies contribute by imposing abusive employment conditions; recruitment agencies by recruiting the workers under false promises; the state by failing to protect the workers and potentially even facilitating certain practices through its event-related policies; FIFA by requiring a certain number and standard of stadiums for the event; and finally also the sponsors by providing the necessary finances.

This rather simplified identification of the various contributing actors only presents a broad indication of how they contribute to these violations and share responsibility. The problem is that the entanglement of actors and their operations creates highly complex governance structures. In order to identify those actors responsible for the violations, victims first have to untangle these structures and retrace the chain of decisions taken, permits issued, orders given, and actions taken. Even if that succeeds, the key challenges are to identify which of the contributing acts would give rise to legal responsibility and to establish responsibility for those actors that have no direct obligations under international human rights law.

The Second Half:  Establishing Accountability

The entanglement of actors and their contributions does not only impede the identification of the responsible actors but also the identification of adequate accountability mechanisms. The business and human rights field knows a broad spectrum of mechanisms ranging from judicial to non-judicial, and from state-based to operational level mechanisms. Up to this point, the few attempts to hold certain actors accountable for MSE-related human rights violations either have been unsuccessful or only addressed a fraction of the actors or types of violations involved. For example, FIFA’s responsibility for World Cup-related human rights abuses has been the subject of a court case in Switzerland and two specific instances dealt with by the Swiss National Contact Point (NCP). The court in Zürich dismissed the case with unusual speed on mainly practical grounds (a more detailed discussion of the judgement can be found here).[7] The mediation procedure at the Swiss NCP led to the creation of a monitoring system for decent work and safety in the workplace for migrant construction workers in Qatar[8], but their living standards and the abuses of recruitment agencies were not addressed.

What these attempts highlight is that the main shortcomings of available mechanisms amount to a lack of access to these mechanisms for affected groups and individuals and a lack of human rights receptivity of existing mechanisms. In light of these shortcomings, new mechanisms are currently being developed and existing mechanisms are being tested in the MSE and human rights context. Just in time for the start of the World Cup, FIFA launched its new complaint mechanism for human rights defenders, which provides human rights defenders and media representatives with an avenue for complaints for situations “in which they consider that their rights have been unduly restricted when conducting work in relation to FIFA’s activities”.[9] Via an online platform, human rights defenders, journalists and other media representatives can submit a complaint and FIFA commits to ensure that it will apply an “appropriate follow-up processes” to it.[10] FIFA itself is supposed to assess these complaints and seek cooperation with third parties that are involved in the matter and relevant institutions that can support the complainant.[11] With regard to testing existing mechanisms, the possibilities for using arbitration as means to address MSE-related human rights issues opened up with the revised bidding and hosting regulations of FIFA and the IOC. Both entail provisions for human rights protection and arbitration clauses, referring to the Court of Arbitration for Sports, for challenging the performance of the host-city or -country under any of the provisions.

The Overtime: The Winner Takes its Share

One way of interpreting these recent efforts of international sports bodies to increase awareness and respect for human rights protection in connection with their events is to argue that they are increasingly becoming aware of their share of responsibility and accountability. Indeed, the increased awareness of adverse human rights impacts of MSEs triggered a number of initiatives that aim at raising human rights standards in the MSE business. In 2016, the MSE platform for human rights has been created, which is a multi-stakeholder coalition consisting of international and intergovernmental organisations, governments, sports governing bodies, athletes, unions, sponsors, broadcasters, and civil society groups, who are committed to take joint action to protect human rights throughout the MSE lifecycle. Recently, this multi-stakeholder initiative created the Centre for Sport and Human Rights, which is an independent center that connects stakeholders and affected groups to share knowledge, build capacity, and strengthen accountability for adverse human rights impacts of sports more generally. Concrete event-related examples of initiatives exist as well. In the run-up to this year’s World Cup, FIFA, Russian authorities and representatives of trade unions took a joint effort to set up a monitoring program for labour conditions on World Cup construction sites. Similar processes led to the establishment of a worker welfare monitoring system for workers on World Cup construction sites in Qatar.

Nevertheless, significant challenges remain in relation to concrete cases of MSE-related human rights abuses and it is important that these efforts do not fade after the final match has been played. MSE-related human rights violations do not automatically stop when the event is over. In some cases, for instance cases of forced evictions, violations continue as long as victims have not been compensated adequately. These challenges do not make it a hopeless endeavour, but they highlight that more work and change is needed before responsibility for MSE-related human rights violations can be established. Especially, most of the developments and efforts of sports governing bodies are rather recent and only apply to events that will take place in the future. Hence, it remains to be seen whether the revised bidding regulations can ensure that future World Cups will have a more positive human rights legacy and eventually avoid adverse human rights impacts altogether.

[1] Business & Human Rights Resource Centre, ‘Russia 2018 FIFA World Cup’ <https://business-humanrights.org/en/russia-2018-fifa-world-cup> accessed 14 February 2018.

[2] ibid 27.

[3] Megan Corrarino, ‘“Law Exclusion Zones”: Mega-Events as Sites of Procedural and Substantive Human Rights Violations’ (2014) 17 Yale Human Rights and Development Law Journal 180.

[4] Lucy Amis and John Morrison, ‘Mega-Sporting Events and Human Rights—A Time for More Teamwork?’ (2017) 2 Business and Human Rights Journal 135, 137.

[5] For a more elaborate overview of actors, see Amis and Morrison (n 5) at 136.

[6] Fédération Internationale de Football Association, ‘2018 FIFA World Cup Russia^TM - FIFA Partners’ (FIFA.com, 2017) <http://www.fifa.com/worldcup/organisation/partners/index.html> accessed 15 February 2018.

[7] FNV, Bangladeshi Free Trade Union Congress, BWI & Nadim Shariful Alam v FIFA Handelsgericht Kanton Zürich (3 January 2017).

[8] Specific Instance regarding the Fédération Internationale de Football Association (FIFA) submitted by the Building and Wood Workers’ International (BWI) - Final Statement Swiss National Contact Point (2 May 2017).

[9] FIFA, ‘FIFA Statement on Human Rights Defenders and Media Representatives’ (2018) 4, para 14 <https://resources.fifa.com/image/upload/ejf1ecdku14lm2v9zc03.pdf> accessed 12 June 2018.

[10] ibid.

[11] ibid 5, para 15.