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.

This post is an extended version of an article published in August on hostcity.net.

The recent debacle among the candidate cities for the 2022 Winter Games has unveiled the depth of the bidding crisis faced by the Olympic Games. The reform process initiated in the guise of the Olympic Agenda 2020 must take this disenchantment seriously. The Olympic Agenda 2020 took off with a wide public consultation ending in April and is now at the end of the working groups phase. One of the working groups was specifically dedicated to the bidding process and was headed by IOC vice-president John Coates.  

The bidding crisis: From Mega to Giga events

The century started with two successful summer and winter Olympics in Sydney and Salt Lake City. However, since then, we could witness the oversized Athens Games that helped to bankrupt Greece, the first Olympic Games of China’s communist dictatorship, and the most expensive Winter Olympics ever in Sochi. In fact, the Olympic Games seem to have left the world of mega-events to enter the universe of giga-events: events that require investments on a massive scale, which are under a permanent global scrutiny and which can have a dramatic impact on local social, economic and environmental life worlds. Meanwhile, the growing competition from countries whose leaders’ political accountability is (to say the least) relative, crowds out modest (and more sustainable) bids. Recent Games, culminating evidently in the Sochi experiment, have shown a propension for grandiosity leading to a lack of respect for their negative impact in terms of environmental, social and economical sustainability. This has led to widespread distrust from the global citizenry; clearly noticeable in places where public opinion is sought after and practically demonstrated by the string of defections in the bids for the 2022 Winter Games. To end this crisis and regain the necessary trust, confidence and passion of the citizens, real changes to the bidding process are required.     

Changing the Olympic bidding process

How could these changes to the bidding process look like? Three types of proposals can be sketched: changing the weighing formula of the different evaluation criteria in order to clearly favour sustainability; introducing a budget ceiling to bids (a kind of financial fair play rule); and, finally, increasing the transparency and fairness of the selection process itself. This is only a set of potential reform orientations, many more good proposals to improve the bidding process have been suggested. 

Changing the weighing of the Olympic criteria

How much weight is currently put on the sustainability of a candidacy? Very little. To be precise, in the case of Sochi, merely 5,7% of the final mark depended on the quality of the project in terms of its environmental legacy. At the moment, the social and economic sustainability of a project is not even considered in the evaluation process. This explains that despite its very poor environmental showing, the Sochi bid managed to go through the evaluation process unharmed. In an era apprehensive about climate change and environmental hazards, in a time of heightened inequality and economic austerity, however, the sustainability of giga-events cannot be easily brushed aside. The image of the Olympic Games has tremendously suffered from the IOC’s doublespeak: on one side, praising sustainability and environmental responsibility in the Olympic Charter and, on the other, knowingly awarding the Games to bids incompatible with these proclaimed values. Not only must the Olympic Charter be taken seriously, but it is also time for the IOC to put its money where its mouth is. These are exactly the kind of concerns, which, thanks to the Olympic Agenda 2020 process, should finally find their way into the bidding process. 

Introducing a ‘Financial Fair Play’ for bidding

From a purely economic point of view, the Olympics are faced with the emergence of the “nouveau riches”, BRICS and others, which are ready to spend lavishly and sometimes irrationally on “their” Games. In certain countries, where the accountability of government towards their citizens is relative, there are no limits in sight to the size of the investments incurred to get and organize the Games. This competition drives the price of the Games through the roof and crowds out a growing number of countries from the exclusive circle of Game organizers. What can be done to rein it? Why not try out a form of financial fair play: a golden rule limiting on the basis of a reasonable (and context-dependent) formula the amounts a host-city is authorized to spend on bidding for, and organizing of, the Games. Such a rule would limit the costs of organizing the Games to a reasonable amount and refocus the bidding competition on non-economic dimensions. Furthermore, it would pre-empt the prospect of governments overspending on the Games and later facing a wave of global criticisms when the price tag is disclosed and the citizens’ awareness of the costs, in terms of schools or hospitals not-built, turns into anger.  

Towards a transparent and independent selection process

Finally, there is an urgent need of opening up the selection process to public scrutiny. This is not exclusively a concern for the Olympic Games as illustrated by the on-going FIFA World Cup Qatar 2022 scandal. Its two phases, evaluation and nomination, should be institutionally neatly separated. A team composed equally of Olympic family members and external experts should lead the evaluation phase. Its findings should be binding in designating the candidate cities and to some extent binding on the election of the host city by the IOC. Especially, since host-city elections have historically been marred with intrigues and suspicions of votes being sold to the highest bidder. Hence, to restore the image of the Games, the Agenda 2020 should consider making the individual votes public and limiting as much as possible the contacts between bidders and IOC members. In many ways, the IOC operates still as though it were a local Swiss chess club. Political power is concentrated in the hands of its non-elected members, but it has widely outgrown a chess club and now affects millions of people’s lives around the world. Those deserve at least to be able to fully scrutinize the decisions taken, if not to participate in their adoption.  

Bidders of the world Unite!

The Olympic Agenda 2020 might be unsatisfactory in terms of transparency and inclusiveness. Nevertheless, this is a unique opportunity to publicly influence the way the Olympic Games are run and to shape Olympic policies for the years to come. It is the bidders’ (cities, countries, federations) responsibility to seize this opportunity and to raise their voices to impose the changes they see fit, in order to restore the trust of citizens and improve the Games’ public perception. Thus, one can only welcome the recent initiative taken by four NOCs, which have produced a thoroughly argued joint paper on ‘the bid experience’, making an immediate impact on the Olympic Agenda 2020 and forcing the IOC to acknowledge publically the necessity to reform the bidding process. The political battle for the future of the Olympics will be played out until 8 and 9 December 2014, when the IOC Session is due to adopt the changes to the Olympic Charter and its bylaws brought forward in the framework of the Olympic Agenda 2020 process. Until then, stakeholders with a lot at stake, like the bidders, should publically call and argue for the reforms they wish for. A united front of the bidders can and should drive forward the Olympic Agenda 2020 and bear on the fundamental orientations the Games will take in the upcoming years.