Editor's note: Anna Antseliovich heads the sports practice at the Moscow-based legal group Clever Consult. She also works as a senior researcher at the Federal Science Center for Physical Culture and Sport (Russia).

The Olympic Games have always been a source of genuine interest for spectators as Olympians have repeatedly demonstrated astounding capacity of the human body and mind in winning Olympic gold, or by achieving success despite all odds.

At the ancient and even the first modern Olympic Games, there was no concept of a national team; each Olympian represented only himself/herself. However, at the 1906 Intercalated Games[1] for the first time, athletes were nominated by the National Olympic Committees (‘NOCs’) and competed as members of national teams representing their respective countries. At the opening ceremony, the athletes walked under the flags of their countries. This was a major shift, which meant that not only the athletes themselves competed against each other, but so too did the nations in unofficial medal standings.  

The nomination and selection of athletes by their NOCs to compete under their national flag and represent their country is a matter of pride for the vast majority of athletes. However, to what extent does such a scheme correspond to the ideals which the Olympic Games were based on in ancient times? Is it possible to separate sport and politics in the modern world?

Olympic Principles

The ancient Olympics began as a religious celebration in honor of the ancient Greek god Zeus. All freeborn male citizens of Greece could participate. The modern Olympics no longer maintain religious significance and are based on modern ideas and principles.

The principles of Olympism are enshrined in the Olympic Charter under “Fundamental Principles of Olympism”. The first paragraph of the Charter reads: “Olympism is a philosophy of life, exalting and combining in a balanced whole the qualities of body, will and mind. Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example, social responsibility and respect for universal fundamental ethical principles.” Thus, it should seem obvious that Olympism is centered on a human, his/her body, will, and mind. Nations are not mentioned at all in this section. On the contrary, “sports organizations within the Olympic Movement shall apply political neutrality.”

Moreover, the Olympic Charter enshrines the practice of sport as an inherent human right: “Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”  Paragraph 6 continues with “The enjoyment of the rights and freedoms outlined in this Olympic Charter shall be secured without discrimination of any kind, such as race, color, sex, sexual orientation, religion, political or other opinion, national or social origin, property, birth or other status.”

Based on the above, we can conclude that anyone has the right to participate in competitions covered directly or indirectly by the Olympic Charter, and no one person or entity can be deprived of this right. The only limitation on participation is an individual athlete’s qualification and eligibility.  

Entering by NOC

The Olympic Charter Rule 40 provides that “the competitor, team official or other team personnel must be entered by his NOC” to participate in the Olympic Games.

Rule 41 and its By-law deal with cases where there are issues with the nationality of an athlete, such as a change of nationality, a change in the status of the territory on which an athlete resides, etc., but clearly states that, as a general rule, an athlete shall be a national of the NOC that is selecting him/her.

In previous years, the IOC allowed so-called independent athletes to participate in the Olympic Games (such teams had different names but the same status). In 1992 they were athletes from Macedonia and Yugoslavia, in 2000 from East Timor, in 2012 athletes from the Netherlands Antilles and South Sudan, in 2014 from India, in 2016 from Kuwait and Russia, and in 2018 from Russia. These athletes competed as independent/neutral athletes for various reasons, such as the absence of the NOC, the suspension of the NOC from the IOC, doping scandals, or international sanctions.

The increased role of the State that is expressed by the appearance of the national symbols on the athletes' uniform, the playing of national anthems, and the flying of the national flag at the award ceremony has given rise to an unofficial medal count, which now - whether the IOC wants it or not - plays an extremely important role at each Olympic Games. Spectators intensely monitor which country is leading the medal count - sometimes even more than the competition itself. More and more countries are competing against each other, drawing up medal plans in an attempt to prove that their training system is the best and the most progressive, which, in turn, shows the superiority of their political and/or financial system. This all takes the spectators’ attention away from the purity of revelling in the capabilities of the human body and spirit and admiring the achievements of athletes.

Such an approach to the formation of Olympic teams (at least in individual sports) does not comply with the principle enshrined in Rule 6 of the Olympic Charter “the Olympic Games are competitions between athletes in individual or team events and not between countries..” and it seems that it is unfair for several reasons.

First, while for most athletes the very opportunity to represent their country at the most important sporting event is a source of great pride, for other athletes, it is not. For example,  refugees who have fled their homeland, for fear of torture and/or death. For them, it is unacceptable to compete under the flag of their country. Their “national” NOC could not enter them in any event. To circumvent this problem, the IOC created a team of 10 refugee athletes who competed under the IOC flag and anthem for the first time at the Rio de Janeiro 2016 Olympic Games. In 2018, at the 133rd session of the IOC in Buenos Aires, it was confirmed that the Tokyo Olympics will also feature a refugee team. However, refugees are not the only group of athletes who have difficult relations with the authorities and/or political regimes. There are many places in the world where people are struggling for independence or with repressive regimes. For these athletes to compete under the national symbols used by such authorities is fundamentally and morally impossible because it contradicts their political views (for example, some of the Kurds may not be happy to represent Turkey, some of the Basques may be happy to see any flag but not a Spanish one, some individuals residing in Northern Ireland may feel themselves hurt and unhappy to compete under the Union Jack, the flag of the United Kingdom, Tibetans and Uighurs hardly want to glorify the flag of China that suppresses any attempts to show their national identity, etc.).

Second, despite the requirement of the Olympic Charter to observe political neutrality by NOCs, in reality, this is not always respected. A vivid example is a current situation in Belarus, where until February 2021 the NOC was headed by President Aleksandr Lukashenko, after whose election mass protests broke out in the country resulting in numerous human rights violations. Since February 2021, the NOC has been headed by his son, Viktor Lukashenko. Athletes who took part in the protests were persecuted and sometimes even imprisoned. It is obvious that such athletes have no chance to be selected by the NOC for the Tokyo Olympics and even if they were to be entered, they would unlikely be proud to perform under the symbols of a regime that they consider illegitimate.

The two examples demonstrate that performing under a national flag can sometimes have grave significance. Athlete can either be completely barred from competing in the Olympics should they not hold the correct political allegiance, or be forced to compete under a national flag that does not reflect their political views.

The author considers that a solution to the abovementioned problem consists in the registration of an athlete, if he/she meets sports criteria for participation in the Olympic Games, directly by the IOC in the personal capacity. Each athlete will then be able to independently decide to use the national symbols that correspond to his political views, or to refuse to use any symbols in general. This approach is consistent with the abovementioned principles.

Conclusion

The Olympic Games have evolved enormously from local games as part of a religious celebration to a worldwide sports festival watched by millions of people. The Olympics are the epitome of international competition between athletes and between nations. Political controversy and scandals surrounding the Olympics often overshadow athletes' successes. To remove the political underlying basis of the Olympics, the approach of entering athletes by the NOCs should be abandoned, and athletes (at least in individual sports) should be allowed to compete in a personal capacity stripping away political connotations that ought to be extraneous to sports competitions. 

[1] Intercalated Games were supposed to be a series of international competitions held in Athens halfway between Summer Olympic Games. The only such games were held in 1906.

Yesterday, 18 May 2016, the licensing committee of the Dutch football federation (KNVB) announced its decision to sanction FC Twente with relegation to the Netherland’s second (and lowest) professional league. The press release also included a link to a document outlining the reasons underlying the decision. For those following the saga surrounding Dutch football club FC Twente, an unconditional sanction by the licensing committee appeared to be only a matter of time. Yet, it is the sanction itself, as well as its reasoning, that will be the primary focus of this short blog.

Background

By way of reminder, FC Twente is the typical example of a professional football club who had been “punching above its weight” for years. After taking over the club in 2003, president Joop Munsterman and his fellow associates took extreme financial risks in order to overtake clubs like PSV and Ajax as the best club in the Netherlands. At first they were successful, but winning the Dutch league in 2010 did not prove enough for the overambitious executives of FC Twente. The club started spending more money than ever on the transfer marker and new massive loans were taken to upgrade the stadium to Champion League standards. Unfortunately, all this extra spending did not materialize in extra sporting successes. Furthermore, the money derived from selling players was not sufficient to service the debt incurred in the process.

Yet, the scope of FC Twente’s financial trouble did not become apparent until November 2015. It was then that footballleaks released the Economic Rights Participation Agreement (ERPA), or TPO agreement, the club had signed with the Maltese investment company Doyen. The fine prints of the ERPA, explained in our blog of 2 December, took everyone by surprise, including the KNVB’s licensing committee. More than the precarious state of the club’s finances, it was the fact that FC Twente had deliberately mislead the KNVB regarding its relationship with Doyen that shocked the Dutch federation.[1]

As an immediate reaction to Twente’s omissions, on 15 December, the licensing committee decided to conditionally withdraw FC Twente’s license, unless the club collaborates fully to an independent internal investigation into its structure and governance. Moreover, the licensing committee sanctioned FC Twente with a €45,250 fine and a three-year exclusion from participating in European competitions. The report of the internal investigation, published on 1 March 2016, highlighted the complete lack of transparency in transfer matters, i.e. all the transfers and their financing were taken care of by vice-president Van der Laan without the involvement of other board members. The ‘Additional Agreement’ signed with Doyen, for example, was never mentioned in any of the board meetings. The report also brought to light a fresh case of deliberate deceit of the licensing committee in the transfer of Dusan Tadic to Southampton the summer of 2014. According to FC Twente’s original disclosure to the KNVB, Tadic’s agent would receive €1.8 million, which was 15% of the transfer amount. However, in January 2016, a month after FC Twente promised full collaboration in the investigation, it suddenly turned out that Tadic’s agent still had a claim of €1.8 million based on a second agreement between him and the club regarding the same transfer. Not only was this second agreement never notified to the licensing committee, it was also never mentioned to the investigators during several meetings held in December 2015. 

The licensing committee’s decision

In a nutshell, the licensing committee decided to unconditionally withdraw FC Twente’s license, but to simultaneously grant it a new license so that it is permitted to play in the Dutch second professional league. The committee held that:

“The Dutch licensing system was repeatedly, deliberately and systematically undermined by FC Twente and the licensing committee was repeatedly, intentionally and purposely misled. This behavior undermines the functioning of the licensing system, contributes to an unfair competition between professional football clubs, creates income for FC Twente it would not have obtained under fair conditions (e.g. income from the selling of TV rights) and leads to player transfers that possibly would not have taken place had the club behaved ethically.”[2]

It added that it had already considered an unconditional withdrawal of the license in December 2015, but decided against it because it needed more information, such as an independent report. The licensing committee’s conclusions drawn from the report was twofold. On the one hand, the licensing committee praised the fact that FC Twente collaborated with the investigation, that it promised to continue with the reorganization of the club’s governance structure after  a new license was granted[3] and that it will not ask for a UEFA license for the next three seasons.[4]

On the other hand, the licensing committee felt it needed to act as a consequence of the new information regarding the Tadic transfer. The committee determined that the “Doyen Gate” was not an isolated incident, but that it fitted in a pattern of systematic unethical behavior by FC Twente’s management. Consequently, it concluded that FC Twente had breached Article 9 of the Dutch license regulation, which requires a license holder (i.e. a professional football club) to timely provide the licensing committee all the relevant information and documents regarding the club’s financial situation, transfer details, etc. Interestingly enough, the license regulation offers only two sanction possibilities for breaching Article 9: A fine of maximum €45.250 under Article 11(1); or the complete withdrawal of the license under Article 12(2)c). The option to sanction a club with a relegation to the lower divisions is currently not an option, as stipulated by the license committee in paragraph 9 of its decision.

The lack of alternative options proved to be problematic for the licensing committee because it found a fine of €45.250, given the circumstances, disproportionately light, but the decision to withdraw the license disproportionately heavy.[5] A complete license withdrawal could realistically lead to the disappearance of FC Twente, a football club with (as held by the licensing committee) an important role in the Enschede region. “The licensing committee is aware that the effects (of a collapse) could be disastrous for FC Twente, its employees, financers, supporters and professional football in the region”.[6] With this statement, the licensing committee is demonstrating that it is taking into account inter alia the guarantee issued by the municipality of Enschede on a loan of €32 million for FC Twente in December 2015, under the condition that the club would obtain a license. Without this loan, FC Twente would have gone bankrupt. In the end, the licensing committee came up with the rather pragmatic solution to withdraw unconditionally FC Twente’s license, immediately followed by the granting of a new license to participate in the second professional league, “in order to limit the disproportionate consequences of the license withdrawal”.[7]

What makes the licensing committee’s decision worthy of debate is that the regulations, strictly speaking, do not provide for the option to replace a first division license with a second division license. The committee admits that it has sought the limits of the licensing regulations, but defends its decision by stating it is sanctioning FC Twente for its past actions in a proportionate manner while taking into account the interests of the club and its stakeholders.  

Aftermath

In an official statement following the decision, FC Twente declared that its currently studying all its options. Although an appeal remains one of the possibilities, one could argue that it might be too risky for FC Twente to do so. Concretely, an appeal would probably lead to a sanction that actually exists under the regulations: A fine of €45.250 or an unconditional withdrawal of a license. A more interesting issue is whether any other professional club might consider questioning this decision. Clubs who believe to have been placed in a disadvantageous position as a result of FC Twente’s deliberate and systematic deceit, could argue that the current sanction does not address the gravity of the misconduct. Moreover, the fact that the sanction is not enshrined in the KNVB’s regulations, could make it difficult for the licensing committee to uphold it in an appeal procedure.

This decision puts the final nail in FC Twente’s coffin. The surprising rise and brutal downfall of the Dutch club exemplifies the advantages and downsides of TPO. This practice (and other financial tricks linked to the transfer system) enabled Twente to leverage up and make the impossible possible (winning the Eredivisie), but at the same time strapped it with an unsustainable debt that has brought the club to its knees. Basically, fans must choose between a few seconds (or years) of glory on the one hand, or a sustainable future for their club on the other.

[1] FC Twente had not disclosed to the KNVB an Annex, called ‘Additional Agreement’, to the ERPA that insinuated far-reaching influence by Doyen in employment and transfer-related matters, thereby breaching FIFA and KNVB Regulations.

[2] The licensing committee’s decision, page 1.

[3] In this regard it should be noted that four FC Twente board members resigned in March as a result of the report. See “FC Twente geeft toelichting op onderzoeksrapport Knüppe” (http://www.fctwente.nl/blog/2016/03/fc-twente-geeft-toelichting-onderzoeksrapport-knuppe/).

[4] The licensing committee’s decision, page 3.

[5] Ibid., page 4.

[6] Ibid., page 5.

[7] Ibid.