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

New Event! Rule 50 of the Olympic Charter and the Right to Free Speech of Athletes - Zoom In Webinar - 14 July - 16:00 (CET)

On Wednesday 14 July 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret, is organizing a Zoom In webinar on Rule 50 of the Olympic Charter and the right to free speech of athletes.

As the Tokyo Olympics are drawing closer, the International Olympic Committee just released new Guidelines on the implementation of Rule 50 of the Olympic Charter. The latter Rule provides that ‘no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. The latest IOC Guidelines did open up some space for athletes to express their political views, but at the same time continue to ban any manifestation from the Olympic Village or the Podium. In effect, Rule 50 imposes private restrictions on the freedom of expression of athletes in the name of the political neutrality of international sport. This limitation on the rights of athletes is far from uncontroversial and raises intricate questions regarding its legitimacy, proportionality and ultimately compatibility with human rights standards (such as with Article 10 of the European Convention on Human Rights).

This webinar aims at critically engaging with Rule 50 and its compatibility with the fundamental rights of athletes. We will discuss the content of the latest IOC Guidelines regarding Rule 50, the potential justifications for such a Rule, and the alternatives to its restrictions. To do so, we will be joined by three speakers, Professor Mark James from Manchester Metropolitan University, who has widely published on the Olympic Games and transnational law; Chui Ling Goh, a Doctoral Researcher at Melbourne Law School, who has recently released an (open access) draft of an article on Rule 50 of the Olympic Charter; and David Grevemberg, Chief Innovation and Partnerships Officer at the Centre for Sport and Human Rights, and former Chief Executive of the Commonwealth Games Federation (CGF). 

Guest speakers:

  • Prof. Mark James (Metropolitan Manchester University)
  • Chui Ling Goh (PhD candidate, University of Melbourne)
  • David Grevemberg (Centre for Sport and Human Rights)

Moderators:


Free Registration HERE

Investment in Football as a Means to a Particular End – Part 1: A non-exhaustive Typology - By Rhys Lenarduzzi

Editor's note: Rhys is currently making research and writing contributions under Dr Antoine Duval at the T.M.C. Asser Institute with a focus on Transnational Sports Law. Additionally, Rhys is the ‘Head of Advisory’ of Athlon CIF, a global fund and capital advisory firm specialising in the investment in global sports organisations and sports assets.

Rhys has a Bachelor of Laws (LL.B) and Bachelor of Philosophy (B.Phil.) from the University of Notre Dame, Sydney, Australia. Rhys is an LL.M candidate at the University of Zurich, in International Sports Law. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football.

Rhys is also the host of the podcast “Sportonomic”.


Introduction

In the following two-part blog series, I will start by outlining a short typology of investors in football in recent years, in order to show the emergence of different varieties of investors who seek to use football as a means to a particular end. I will then in a second blog, explore the regulatory landscape across different countries, with a particular focus on the regulatory approach to multi-club ownership. Before moving forward, I must offer a disclaimer of sorts.  In addition to my research and writing contributions with the Asser Institute, I am the ‘Head of Advisory’ for Athlon CIF, a global fund and capital advisory firm specialising in the investment in global sports organisations and sports assets. I appreciate and hence must flag that I will possess a bias when it comes to investment in football.

It might also be noteworthy to point out that this new wave of investment in sport, is not exclusive to football. I have recently written elsewhere about CVC Capital Partners’ US$300 million investment in Volleyball, and perhaps the message that lingers behind such a deal.  CVC has also shown an interest in rugby and recently acquired a 14.3 per cent stake in the ‘Six Nations Championship’, to the tune of £365 million.  New Zealand’s 26 provincial rugby unions recently voted unanimously in favour of a proposal to sell 12.5 per cent of NZ Rugby’s commercial rights to Silver Lake Partners for NZ$387.5 million.  Consider also the apparent partnership between star footballer’s investment group, Gerard Pique’s Kosmos, and the International Tennis Federation.  Kosmos is further backed by Hiroshi Mikitani’s ecommerce institution, Rakuten, and all involved claim to desire an overhaul of the Davis Cup that will apparently transform it into the ‘World Cup of Tennis’. Grassroots projects, prizemoney for tennis players and extra funding for member nations are other areas the partnership claims to be concerned with. As is the case with all investment plays of this flavour, one can be certain that a return on the capital injection is also of interest.

So, what are we to conclude from the trends of investment in sport and more specifically for this blog series, in football? A typology elucidates that a multiplicity of investors have in recent years identified football as a means to achieve different ends. This blog considers three particular objectives pursued; direct financial return, branding in the case of company investment, or the branding and soft power strategies of nations.More...



WISLaw Blog Symposium - Rule 40 of the Olympic Charter: the wind of changes or a new commercial race - By Rusa Agafonova

Editor's note: Rusa Agafonova is a PhD Candidate at the University of Zurich, Switzerland   

The Olympic Games are the cornerstone event of the Olympic Movement as a socio-cultural phenomenon as well as the engine of its economic model. Having worldwide exposure,[1] the Olympic Games guarantee the International Olympic Committee (IOC) exclusive nine-digit sponsorship deals. The revenue generated by the Games is later redistributed by the IOC down the sports pyramid to the International Federations (IFs), National Olympic Committees (NOCs) and other participants of the Olympic Movement through a so-called "solidarity mechanism". In other words, the Games constitute a vital source of financing for the Olympic Movement.

Because of the money involved, the IOC is protective when it comes to staging the Olympics. This is notably so with respect to ambush marketing which can have detrimental economic impact for sports governing bodies (SGBs) running mega-events. The IOC's definition of ambush marketing covers any intentional and non-intentional use of intellectual property associated with the Olympic Games as well as the misappropriation of images associated with them without authorisation from the IOC and the organising committee.[2] This definition is broad as are the IOC's anti-ambush rules.More...

WISLaw Blog Symposium - Why the existing athletes' Olympic entering system does not comply with the fundamental principles of Olympism enshrined in the Olympic Charter - By Anna Antseliovich

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? More...


WISLaw Blog Symposium - Legal and other issues in Japan arising from the postponement of the Tokyo 2020 Olympic Games due to COVID-19 - By Yuri Yagi

Editor's note: Yuri Yagi is a sports lawyer involved in Sports Federations and Japanese Sports Organizations including the Japan Equestrian Federation (JEF), the International Equestrian Federation (FEI), the Japanese Olympic Committee (JOC), the Japan Sports Council (JSC) and the All-Japan High School Equestrian Federation.


1. Introduction

Japan has held three Olympic Games since the inception of the modern Olympics;Tokyo Summer Olympic Games in 1964, Sapporo Winter Olympic Games in 1972, and Nagano Winter Olympic Games in 1998. Therefore, the Tokyo 2020 Olympic Games (Tokyo 2020) are supposed to be the fourth to be held in Japan, the second for Tokyo. Tokyo 2020 were originally scheduled for 24 July 2020 to 9 August 2020. Interestingly, the word ‘postpone’ or ‘postponement’ does not appear in the Host City Contract (HCC).

However, the International Olympic Committee (IOC), the Tokyo Metropolitan Government (TMG), the Japanese Olympic Committee (JOC), and the Tokyo Organising Committee of the Olympic and Paralympic Games (TOCOG) decided on 24 March 2020 that Tokyo 2020 would be postponed because of the pandemic of COVID-19. Later on, the exact dates were fixed ‘from 23 July 2021 (date of the Opening Ceremony) to 8 August 2021 (date of the Closing Ceremony).

The process of the decision is stipulated in the ‘ADDENDUM N° 4’ signed by IOC, TMG, JOC and TOCOG.

This paper provides an overview of the current situation, along with legal and other issues in Japan that have arisen due to the postponement of Tokyo 2020 due to COVID-19. The overview is offered from the perspective of a citizen of the host city and includes a consideration of national polls, the torch relay, vaccination, training camps, ever increasing costs, and the related provisions in the Candidature File and the Host City Contract. More...



WISLaw Blog Symposium - Freedom of Expression in Article 10 of the ECHR and Rule 50 of the IOC Charter: Are these polar opposites? - By Nuray Ekşi

Editor's note: Prof. Dr. Ekşi is a full-time lecturer and chair of Department of Private International Law at Özyeğin University Faculty of Law. Prof. Ekşi is the founder and also editor in chief of the Istanbul Journal of Sports Law which has been in publication since 2019.


While Article 10 of the European Convention on Human Rights (‘ECHR’) secures the right to freedom of expression, Rule 50 of the Olympic Charter of 17 July 2020 (‘Olympic Charter’) restricts this freedom. Following the judgments of the European Court of Human Rights (‘ECtHR’) relating to sports, national and international sports federations have incorporated human rights-related provisions into their statutes and regulations. They also emphasized respect for human rights. For example, Article 3 of the Fédération Internationale de Football Association (‘FIFA’) Statutes, September 2020 edition, provides that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”. Likewise, the Fundamental Principles of Olympism which are listed after the Preamble of the of the Olympic Charter 2020 also contains human rights related provisions. Paragraph 4 of Fundamental Principles of Olympism provides that the practice of sport is a human right. Paragraph 6 forbids discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the International Olympic Committee (‘IOC’) inserted human rights obligations in the 2024 and 2028 Host City Contract.[1] The IOC Athletes’ Rights and Responsibilities Declaration even goes further and aspires to promote the ability and opportunity of athletes to practise sport and compete without being subject to discrimination. Fair and equal gender representation, privacy including protection of personal information, freedom of expression, due process including the right to a fair hearing within a reasonable time by an independent and impartial panel, the right to request a public hearing and the right to an effective remedy are the other human rights and principles stated in the IOC Athletes’ Rights and Responsibilities Declaration. Despite sports federations’ clear commitment to the protection of human rights, it is arguable that their statutes and regulations contain restrictions on athletes and sports governing bodies exercising their human rights during competitions or in the field. In this regard, particular attention should be given to the right to freedom of expression on which certain restrictions are imposed by the federations even if it done with good intentions and with the aim of raising awareness. More...


WISLaw Blog Symposium - Stick to Sports: The Impact of Rule 50 on American Athletes at the Olympic Games - By Lindsay Brandon

Editor's note: Lindsay Brandon is Associate Attorney at Law Offices of Howard L. Jacobs


“Tell the white people of America and all over the world that if they don’t seem to care for the things black people do, they should not go to see black people perform.” – American sprinter and Olympic Medalist John Carlos

On 21 April 2021, the Athletes’ Commission (AC) of the International Olympic Committee (“IOC”) received the “full support of the IOC Executive Board for a set of recommendations in regard to the Rule 50 of the Olympic Charter and Athlete Expression at the Olympic Games.” This came over a year after the 2020 Tokyo Olympic Games were postponed due to the Covid-19 pandemic, and almost a year after the IOC and AC embarked on an “extensive qualitative and quantitative” consultation process to reform Rule 50 involving over 3,500 athletes from around the globe.

Since its introduction of the new guidelines in January 2020, Rule 50 has been touted by the IOC as a means to protect the neutrality of sport and the Olympic Games, stating that “No kind of demonstration or political, religious or radical propaganda is permitted in any Olympic sites, venues, or other areas.”  In other words, the Olympics are a time to celebrate sport, and any political act or demonstration might ruin their “moment of glory”.

In fact, the Rule 50 Guidelines say that a fundamental principle of sport is that it is neutral, and “must be separate from political, religious or any other type of interference.” But this separation is not necessarily rooted in totality in modern sports culture[1], particularly in the United States (“U.S.”).  This is evidenced by the United States Olympic and Paralympic Committee (“USOPC”) committing to not sanctioning Team USA athletes for protesting at the Olympics. The USOPC Athletes stated “Prohibiting athletes to freely express their views during the Games, particularly those from historically underrepresented and minoritized groups, contributes to the dehumanization of athletes that is at odds with key Olympic and Paralympic values.” More...



WISLaw Blog Symposium - 2020 Tokyo Olympic Games - Introduction

Women In Sports Law (WISLaw) is an international, non-profit association based in Switzerland and aimed at promoting women in the sports law sector, through scientific and networking events, annual meetings and annual reports. WISLaw’s objectives are to raise awareness of the presence, role and contribution of women in the sports law sector, enhance their cooperation, and empower its global membership through various initiatives.

This year, WISLaw has partnered with the Asser International Sports Law Blog to organise a special blog symposium featuring WISLaw members. The  symposium will entail both the publication of a series of blog posts authored by WISLaw members, and a virtual webinar (accessible at https://lnkd.in/dgWsy6q with the Passcode 211433) to promote discussion on the selected topics. Article contributions were invited on the topic of legal issues surrounding the Tokyo 2020 Olympics. In the midst of a pandemic and the rise of social justice movements around the world, the Games and their organisation gave rise to a number of interesting legal issues and challenges, which will be explored through a variety of lenses. 

We hope that you enjoy and participate in the discussion.

New Event! The Court of Arbitration for Sport at the European Court of Human Rights - Prof. Helen Keller - 26 May - 16:00

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!


Asser International Sports Law Blog | WISLaw Blog Symposium - Legal and other issues in Japan arising from the postponement of the Tokyo 2020 Olympic Games due to COVID-19 - By Yuri Yagi

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

WISLaw Blog Symposium - Legal and other issues in Japan arising from the postponement of the Tokyo 2020 Olympic Games due to COVID-19 - By Yuri Yagi

Editor's note: Yuri Yagi is a sports lawyer involved in Sports Federations and Japanese Sports Organizations including the Japan Equestrian Federation (JEF), the International Equestrian Federation (FEI), the Japanese Olympic Committee (JOC), the Japan Sports Council (JSC) and the All-Japan High School Equestrian Federation.


1. Introduction

Japan has held three Olympic Games since the inception of the modern Olympics;Tokyo Summer Olympic Games in 1964, Sapporo Winter Olympic Games in 1972, and Nagano Winter Olympic Games in 1998. Therefore, the Tokyo 2020 Olympic Games (Tokyo 2020) are supposed to be the fourth to be held in Japan, the second for Tokyo. Tokyo 2020 were originally scheduled for 24 July 2020 to 9 August 2020. Interestingly, the word ‘postpone’ or ‘postponement’ does not appear in the Host City Contract (HCC).

However, the International Olympic Committee (IOC), the Tokyo Metropolitan Government (TMG), the Japanese Olympic Committee (JOC), and the Tokyo Organising Committee of the Olympic and Paralympic Games (TOCOG) decided on 24 March 2020 that Tokyo 2020 would be postponed because of the pandemic of COVID-19. Later on, the exact dates were fixed ‘from 23 July 2021 (date of the Opening Ceremony) to 8 August 2021 (date of the Closing Ceremony).

The process of the decision is stipulated in the ‘ADDENDUM N° 4’ signed by IOC, TMG, JOC and TOCOG.

This paper provides an overview of the current situation, along with legal and other issues in Japan that have arisen due to the postponement of Tokyo 2020 due to COVID-19. The overview is offered from the perspective of a citizen of the host city and includes a consideration of national polls, the torch relay, vaccination, training camps, ever increasing costs, and the related provisions in the Candidature File and the Host City Contract.

2.    The Situation of COVID-19 in Japan

According to the Government, the first COVID-19 case in Japan was confirmed on 16 January 2020. On 24 March 2020, when the postponement of Tokyo 2020 was decided, the reported number of new COVID-19 positive cases in Japan was 64 (Japanese population is around 126 million). As a comparison, reported cases in Japan on 28 May 2021 was 3,706.

3.    National State of Emergency

Since the start of the pandemic, National states of emergency have been issued three times in Tokyo, the first time was from 7 April 2020 (the reported number of positive cases on that day in Tokyo was 87) to 25 May 2020 (8 cases), the second time was from 8 January 2021 (2,459 cases) to 21 March 2021 (256 cases), and the third began on 25 April 2021 (635 cases) and is still in effect (539 cases as of 29 May 2021). A national state of emergency is not similar to the lockdowns issued in several other countries. It is basically the government’s request that people stay at home. Under National states of emergency, the Government asked businesses, especially restaurants and bars, to close earlier than usual or completely.

4.    National Poll as to Olympic Games

According to a national poll carried out by Japan Broadcasting Corporation (NHK, which is Japan's only public media organization) and published on 10 March 2020, 14 days prior to the decision of the postponement, 40% of respondents answered that they believe the Olympics will be held as scheduled. Conversely, 45% answered that they do not.

The telephone survey of 1,300 Japanese residents carried out by NHK and published on 23 July 2020 showed that 35% said that Tokyo 2020 should be postponed further, 31% said that they should be cancelled, and 26% said that they should be held as scheduled.

In the national poll published by NHK in May 2021, 49% answered Tokyo 2020 should be cancelled, 23% answered they should be held without spectators, 2% answered they should be held as usual.

In addition, people who demanded the cancellation of Tokyo 2020 collected more than 350,000 signatures in an online petition.

5.    Torch Relay

The Olympic Flame was lit in Greece on 12 March 2020 and arrived in Japan on 20 March 2020, just prior to the decision to postpone. However, most related ceremonies were cancelled or downsized and there was less excitement among Japanese citizens than originally expected.

The postponed torch relay started on 26 March 2021 in Fukushima Prefecture, which was severely damaged by a tsunami following The Great East Japan Earthquake in 2011. The torch relay is still ongoing and is live streaming every day on the internet. However in many places, the torch relay has been replaced with stage events instead of running on public roads. Japanese citizens have been asked to not attend the torch relay or the events. As a result, the torch relay has turned out to be totally different from what was expected.

6.    Slow Rollout of Vaccine

COVID-19 vaccination started in Japan on 17 February 2021, first for frontline workers, and at the time of this article (31 May 2021), they are mainly being administered for elderly people over 65 years old. It is a relatively late start and a slow rollout compared to other developed countries (for example vaccination started in December 2020 in the US, the UK, Itally,  France, Germaney, and other countries). As of 30 May 2021, only 0.25% of residents in Japan have been fully vaccinated (twice) and 3.67% have be vaccinated once.

Japanese Prime Minister Yoshihide Suga announced that IOC had struck a deal with Pfizer to provide vaccines for all Tokyo 2020 participants. Accordingly, JOC announced that about 1,600 athletes and other members of Japan's potential delegation to Tokyo 2020 will be vaccinated from 1 June 2021.

7.    Pre-Event Training Camps and Games-Related Events

COVID-19 has also had an effect on Games-related plans such as pre-event training camps and cultural programs planned by local governments. As of 18 May 2021, training camps and Games-related cultural exchange events have reportedly been cancelled in many local governments (reported number was 54) because of the infection risks and the delays of the qualification process.

However it is also reported that the Australian softball team plans to come to Japan for a training camp on 1 June 2021. If this plan is realized, they will be the first team to arrive.

8.    Increasing Cost and Decreasing Revenue

Because of the increasing cost incurred as a result of the postponement, the IOC offered an additional support of reportedly 650 million USD. To reduce costs and support COVID-19 infection prevention measures, TMG and IOC agreed to simplify Tokyo 2020. It has already been decided that spectators from other countries will not be allowed to attend the games. As for domestic spectators, a final decision is expected to be made by the end of June 2021. At any rate, the revenue from the ticket sales will be significantly less than originally estimated.

The postponement of Tokyo 2020 has also resulted in additional costs related to the extension of the employment contracts of the TOCOG staff members, lease contracts of the TOCOG office, and no doubt, countless other contracts. As to domestic sponsorship contracts for Tokyo 2020, they were originally for terms ending December 2020. However, due to  the postponement of the Games, all 68 domestic companies agreed to extend the contract until the end of 2021, despite also facing an unprecedented stagnant business situation.

As to the case of deficit or budget shortfall, the Candidature File and Host City Contract (HCC) provides who will bear the loss.

9.    Candidature File and Host City Contract (HCC)

IOC elected Tokyo as the host city of the 2020 Summer Olympic Games in the 125th IOC Session took place in Buenos Aires, Argentina, from 7 to 10 September 2013. In the bidding process, Candidate Tokyo submitted a Candidature File to the IOC.

Case of Deficit or Budget Shortfall

As to the case of deficit or budget shortfall, the Candidature File and HCC provide that, if TOCOG incurs a deficit, TMG will guarantee to cover any potential economic shortfall of TOCOG, then if TMG should be unable to compensate in full, the Japanese government will ultimately provide the financial support.

Candidature File (*underline added by author for emphasis)

6.1 An OCOG budget fully guaranteed

6.1.1 TOCOG Budget guarantee

Tokyo 2020 is very confident the TOCOG budget will be balanced. Nevertheless, should TOCOG incur a deficit, the Tokyo Metropolitan Government (TMG) has guaranteed to cover any potential economic shortfall of TOCOG, including refunds to the IOC in advance of payment or for other contributions made by the IOC to TOCOG.

In addition, should TMG be unable to compensate in full, the Government of Japan will ultimately compensate for it in accordance with the relevant laws and regulations of Japan.

6.1.2 Compensation mechanism in the event of a budget shortfall

(…) if necessary, TOCOG will activate the compensation mechanism.

Under the compensation mechanism, TOCOG will consult with TMG and the Government of Japan to ensure that the Tokyo 2020 Olympic and Paralympic Games can take place as planned. Financial support will be primarily provided by TMG. In addition, should TMG be unable to compensate in full, the Government of Japan will ultimately provide the financial support in accordance with the relevant laws and regulations of Japan.

The compensation mechanism will function in a similar fashion in the event of full or partial cancellation of the Tokyo 2020 Olympic and Paralympic Games.

The Candidature File is referred to in the HCC, which was signed by the IOC, TMG and JOC on 7 September 2013. It provides that, the TMG and TOCOG shall be jointly and severally responsible for financial undertakings and the Japanese government shall support them.

Host City Contract (*underline added by author for emphasis)

4. Joint and Several Obligations of the City, the NOC and the OCOG

 (…) the City, the NOC (other than with respect to the aforementioned financial undertakings of the City and the OCOG) and the OCOG shall be jointly and severally responsible in respect of all damages, costs and liabilities of any nature, direct and indirect, which may result from a breach of any provision of this Contract. The IOC may in its sole discretion take legal action against the City, the NOC and/or the OCOG, as the IOC deems fit.

The foregoing shall be without prejudice to the liability of any other party, including without limitation, any Government, national, regional or local authorities that provided financial guarantees during the City's application or candidature to host the Games or otherwise.

 

7. Guarantees, Representations, Statements and Other Commitments

All guarantees, representations, statements, covenants and other commitments contained in the City's application or candidature file  (…) shall survive and be binding upon the City, the NOC and the OCOG, jointly and severally, (…).

On top of that, the HCC provides that the TMG, JOC and TOCOG must always protect IOC from all payments and other obligations in respect to any damages, claims, actions, losses, costs, and/or expenses. On the other hand, the TMG, JOC and TOCOG promised to waive any claims against the IOC in the HCC.

9. Indemnification and Waiver of Claims Against the IOC

a) Indemnity by the City, the NOC and the OCOG. The City, the NOC and the OCOG shall at all times indemnify, defend and hold harmless and exempt the IOC, IOC Television and Marketing Services SA, the OBO, as further detailed in Section 54 (a) below, and their respective officers, members, directors, employees, consultants, agents, attorneys, contractors (e.g. Olympic sponsors, suppliers, licensees (of the IOC, the National Olympic Committees and the Organising Committees of the Olympic Games) and broadcasters) and other representatives (each, an "IOC Indemnitee" and collectively, "IOC Indemnitees"), from all payments and other obligations in respect of any damages, claims, actions, losses, costs, expenses (including outside counsel fees and expenses) and/or liabilities of any nature (including injury to persons or property), direct or indirect, suffered by the IOC (or any IOC Indemnitee), including all costs, loss of revenue, and also damages that the IOC (or any IOC Indemnitee) may have to pay to third parties (including but not limited to Olympic sponsors, suppliers, licensees and broadcasters) (collectively, "Claims") resulting from:

i) all acts or omissions of the City, the NOC and/or the OCOG (…), relating to the Games (including in connection with the planning, organising, financing and staging thereof) and/or this Contract;

iii) any claim by a third party arising from, or in connection with, a breach by the City, the NOC or the OCOG of any provision of this Contract.

 

c) Waiver of Claims against the IOC. Furthermore, the City, the NOC and the OCOG hereby waive any Claims against the IOC and the other IOC Indemnitees, including for all costs resulting from all acts or omissions of the IOC relating to the Games, as well as in the event of any performance, non-performance, violation or termination of this Contract. This indemnification and waiver shall not apply to wilful misconduct or gross negligence by the IOC.

Cancellation

As to the cancellation of Tokyo 2020, only the IOC has the right to make such decision on  ‘reasonable grounds’. In the  case of cancellation by the IOC for any reason, the TMG, JOC and TOCOG will be considered as waiving any claim or right of indemnity, and promising to indemnify and hold IOC Indemnities harmless from any third party claims.

XI. Termination

66. Termination of Contract

a) The IOC shall be entitled to terminate this Contract and to withdraw the Games from the City if:

i)  the Host Country is at any time, whether before the Opening Ceremony or during the Games, in a state of war, civil disorder, boycott, embargo decreed by the international community or in a situation officially recognised as one of belligerence or if the IOC has reasonable grounds to believe, in its sole discretion, that the safety of participants in the Games would be seriously threatened or jeopardised for any reason whatsoever;

(…)

iii) the Games are not celebrated during the year 2020;

iv) there is a violation by the City, the NOC or the OCOG of any material obligation pursuant to this Contract, the Olympic Charter or under any applicable law; or if

(…)

In case of withdrawal of the Games by the IOC, or termination of this Contract by the IOC for any reason whatsoever, the City, the NOC and the OCOG hereby waive any claim and right to any form of indemnity, damages or other compensation or remedy of any kind and hereby undertake to indemnify and hold harmless IOC Indemnitees from any third party claims, actions or judgements in respect of such withdrawal or termination(…).

Dispute Resolution

According to Article 87 of HCC, in the case of dispute among parties, the applicable law is Swiss law, and the dispute is to  be decided by Court of Arbitration for Sport (CAS).

87. Governing Law and Resolution of Disputes; Waiver of Immunity

This Contract is governed by Swiss law. Any dispute concerning its validity, interpretation or performance shall be determined conclusively by arbitration, to the exclusion of the ordinary courts of Switzerland or of the Host Country, and be decided by the Court of Arbitration for Sport in accordance with the Code of Sports-Related Arbitration of the said Court. (…)  

10.  Conclusion

No one expected COVID-19 nor the impact that it would have on the Olympic Games at the time of the bidding process and of the signing of the HCC. As a result, the HCC and Candidature File provisions related to the losses caused by the postponement were not well understood among the Japanese people. Now people are starting to recognize the possibility that the TMG or/and Japanese government will likely incur huge losses as a result of the postponement or, in the worst-case, cancellation of Tokyo 2020.

Many Tokyo citizens and Japanese citizens were looking forward to Tokyo 2020 before COVID-19. However, judging from the national polls, now this excitement seems to turn into anxiety and concern.

While the whole world continues to prepare for the postponed Tokyo 2020,  the situation is still uncertain. In fact, the current number of COVID-19 cases in Japan is much larger than at the time when the postponement was decided in March 2020. It is very hard for involved individuals to maintain their motivation in light of this uncertainty. On the other hand, the vaccination push is expected to be a game-changer. Not only the TOCOG, TMG and JOC, but also multimedia outlets, sporting federations, sponsors, travel agencies, and the general public are preparing, believing Tokyo 2020 will be held. It’s natural and understandable that host city citizens have various opinions. However, athletes have been training for the chance to qualify and compete at the Olympic Games their whole life. Therefore, it is hoped the situation will improve and the Tokyo 2021 Olympic Games will be held safely and securely even if they are totally different from what we expected originally.

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