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

The Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

 

1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

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

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 - 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.”

 

Athlete Demonstrations, Historically  

While, unfortunately, many countries have a troubling history of colonialism and slavery, the United States continues to grapple with its racist history. It was not that long ago that Jim Crow laws, legalized racial segregation that replaced slavery, were ended in the United States. Though in 1964, President Lyndon B. Johnson signed the Civil Rights Act that legally ended segregation, de facto segregation has continued through voter suppression tactics, housing discrimination, and lack of access to education and healthcare.

Long before the passage of the Civil Rights Act, some Black athletes held prominence as successful athletes. Despite their fame on the field, they were not treated as equals in society. Naturally, sports became a platform for minorities to speak about the injustices of the racism that plagued America. The following are some examples of athlete-activism that have shaped American sports history.

In 1959, professional basketball player Elgin Baylor was scheduled to play in a game at a neutral site in West Virginia. After the hotel his team was staying at refused to serve him and two of his Black teammates, he sat out the game in protest stating that the game was not more important than his dignity. Mr. Baylor’s act is now considered a defining moment for athlete activism during the Civil Rights Movement. In 1961, following a similar experience by Bill Russell and his Black teammates at an exhibition game in Kentucky, they collectively sat out of the game while their white teammates still played. In response to their actions, Mr. Russell saidWe’ve got to show our disapproval for this kind of treatment or else the status quo will prevail.”

In recent times it is common for leagues to change venues for such events as All-Star Games due to the institution of policies perceived as discriminatory. To historians’ knowledge, the first change in venue was in 1965 when twenty-one African American athletes in the American Football League arrived in New Orleans, Louisiana only to find out they could not get service for transportation or food. After a unanimous vote to boycott the game, the AFL moved the location to Houston, Texas.

Shortly thereafter, Muhammad Ali famously refused the draft during the Vietnam War, citing his religious beliefs, and was subsequently stripped of his heavyweight title and banned from his sport of boxing for three years. Athletes such as Mr. Russell stood up to support Mr. Ali, who became an extremely polarizing figure as he was subsequently convicted of draft eviction and sentenced to jail time (which was ultimately overturned by the United States Supreme Court).

In 1967, Kathy Switzer famously ran the Boston Marathon, a male-only event. Despite being physically assaulted by race officials, Ms. Switzer finished the race but the Amateur Athletic Union officially banned women from racing alongside men across all covered events (which remained in effect for the next five years).

In 1968, American athlete activism became the hallmark of the Mexico City Olympic Games when sprinters Tommie Smith and John Carlos took the podium (as gold and bronze medal winners in the 200-meter dash, respectively) and raised their fists in the air as a symbol of Black Power and the racist mistreatment of Black athletes in America. Together with Mr. Carlos and Mr. Smith, Australian sprinter Peter Norman wore a patch on his jacket from the Olympic Project for Human Rights, an organization founded and comprised by prominent Olympic athletes to expose the mistreatment of Black athletes in America. As a result, Mr. Carlos and Mr. Smith were required to leave the games and suspended from the U.S. National Team (although they were ultimately allowed to keep their medals). Ironically, they are now memorialized at the IOC museum in Lausanne, Switzerland.

In 1973, tennis star Billie Jean King formed the Women’s Tennis Association and threatened to lead a boycott of the U.S. Open if the event refused to pay female prize winners as much as the men. In the early 1991, professional basketball player Craig Hodges tried to organize his fellow Chicago Bulls teammates – one of the greatest NBA teams in its history – to protest the Finals in response to the beating of Rodney King by Los Angeles police. He failed to do so, and after expressing his concerns about racism in the U.S. to President George H.W. Bush at his visit to the White House, was subsequently excluded from the NBA after the next season despite being a league-leader in 3-pointers.

Professional basketball player Mahmoud Abdul-Rauf was suspended in 1996 for failing to stand during the U.S. National Anthem before a game. Afterwards, Mr. Rauf was excluded from the League. Twenty years later, National Football League quarterback Colin Kaepernick took a knee during the anthem in response to racial injustice and police brutality in America. Following this, numerous WNBA players wore “Black Lives Matter” shirts in support of the movement that would become world renowned following the 2020 murder of George Floyd that sparked protests around the world and significant athlete activism in the midst of a global pandemic.

Impetus for Rule 50

During the 2019 Pan-American Games, American athletes Gwen Berry and Race Imboden both made symbolic protests as they took the podium to accept gold medals in their respective sports. Following the protests, USOPC CEO Sarah Hirshland sent letters of reprimand to both athletes and issued a 12-month probation but warned the athletes (and presumably their teammates) that any future acts of protest would be met with more severe consequences.

Though consequences have long been in place for political protests at the Olympic Games, the introduction of the new Rule 50 Guidelines, as outlined below, undoubtedly emerged after the demonstrations by U.S. athletes at the 2019 Pan-Am Games. Of course, the IOC does not want any politically-motivated distractions during the upcoming Tokyo Games, and certainly, at least part of this is motivated not just by the published intent of Rule 50, but also by the IOC’s business interests. Olympic Games organizers and host countries rely on financial investment from broadcast companies and corporate sponsors. That said, the majority of that money comes from U.S.-based companies – home to the demonstrating athletes. In fact, as long ago as 2008, former USOPC chairman Peter Ueberroth said “Make no mistake about it. Starting in 1988, U.S. corporations have paid 60% of all the money, period” when asked “Who pays the bill for the world Olympic movement?”.

Even before the pandemic, the Tokyo Games were to be the most expensive in Olympic history (to the official tune of $US15.4 billion). However, the Associated Press reported that a government audit reported it could be “at least twice that much,” only made worse by the postponement due to the Covid-19 pandemic. Certainly, with so much American corporate investment in the Olympics, and with an unprecedented visibility of American athlete activism, the attention to Rule 50, and its new guidelines, was no sudden coincidence. 

However, the May 25, 2020 murder of George Floyd by Minneapolis, Minnesota police and the subsequent demonstrations that followed changed everything, including public corporate stance on racism in America.

 

Application of Rule 50 to the Athletes

As Rule 50 is written, athletes are still able to express themselves through social media and official press conferences. There are no restrictions for athletes in non-Olympic venues; however, given the restrictions in place due to the pandemic, it is unlikely that the athletes will spend any time in Tokyo outside of an Olympic venue.

When it comes to what is actually prohibited, the examples are targeted and few, and as minority American athletes have rightly criticized – are unclear about what the punishment will be for any infringement or what an infringement might look like, as further explained below. The IOC has provided some non exhaustive examples:

  • Displaying any political messaging, including signs or armbands
  • Gestures of a political nature, like a hand gesture or kneeling
  • Refusal to follow the Ceremonies protocol.

Looking at the examples provided, the “gestures” are certainly reflected in specific demonstrations made by American athletes in response to human and civil rights violations in their home country. In other words, a direct line can be drawn to the rise of athlete activism amongst American athletes and the publishing of the above examples of Rule 50 violations.

For those that disregard Rule 50, the IOC says that “if an athlete or participant is in breach of Rule 50 and the Olympic Charter, each incident will be evaluated by their respective National Olympic Committee, International Federation and the IOC, and disciplinary action will be taken on a case-by-case basis as necessary”. In other words, unlike other global disciplinary codes in place for athletes, there may be inconsistent application of the Rule based upon how signatories decide to handle violations of the Rule.

In response, Ms. Berry, who was previously admonished by the USOPC, stated in July 2020 that “like black and brown people in America it’s unclear how the rules will apply to them and fear is the order of the day”. But, by the end of 2020, the USOPC changed its tone and said that it would decline to punish any other American athlete that demonstrated against racial injustice.

Indeed, since the USOPC’s announcement, it appears that NOCs more favorable to free speech (such as the USOPC) might help “pare back” Rule 50, as it realizes that its survey of global athletes about demonstrations at the Games might not have accurately reflected athletes’ true feelings about its impact, nor perhaps entirely understood that some athletes actually fear mistreatment by their own governments for even answering such a question in a truthful manner.

2020 Changed Athlete Activism in America Forever

On 25 May, 2020, as the pandemic was in full swing and sports were largely on hold, the entirety of America’s focus was on the murder of George Floyd. Even though he was one of over 1,000 people that die by police force in the U.S. each year, Mr. Floyd’s murder was particularly gruesome, and documented in full. What followed was months-long protests and demonstrations all over America, and even worldwide.

As the protests continued, sports resumed and athletes began to compete again, including in the NBA and tennis. With a captive audience desperate for sports content, many of these athletes knew they had a platform to speak out about the injustices and how – despite their fortune as professional athletes – what being a minority in America was like. Given the racial justice reckoning in the U.S., the leagues and event organizers were supportive. For example, Naomi Osaka was allowed to wear masks to each of her U.S. Open matches bearing the names of Black individuals killed by police. Even NASCAR, with arguably the most conservative fan base in America, banned the Confederate flag (the flag of the pro-slavery south that lost the American Civil War) from all of its events.

Indeed, while there was nothing controversial about condemning racism in the U.S., for the first time not only were organizations backing their athletes that engaged in public dialogue about the racism., but countless U.S. companies took to any and every public forum to condemn racism.  Many of these companies are the Olympic Games’ biggest sponsors, including Intel, whose webpage on social equity states that “standing on the sidelines is not an option” and features a photo of protested both kneeling and raising a fist in the air.

With overwhelming acknowledgment of systemic racism in the U.S., the USOPC too changed its tune in its approach to Rule 50. But the IOC persists, holding up its Athletes Commission in defense of punishment of athletes demonstrating against the injustices of their home countries. However, the fact that corporate America now publicly supports such demonstrations only shows how out of touch the IOC’s Rule 50 is. How any potential conflicts between the USOPC and IOC on this issue might play out remains to be seen, and any consequences would be purely speculative.

Conclusion

The Olympics have always demonstrated how sports are a unifying force, but they are not insulated from the global events that impact the lives of Olympic athletes every day. Rule 50, it could be said, as outlined by the IOC Executive Board for the 2020 Games, is in response to the rise of U.S. athlete activism, despite the fact that they have the support of Olympic corporate sponsors.  At face value, Rule 50 seeks to protect the Olympics from “divisiveness” but only furthers the legitimate criticism that the IOC undervalues the voices of athletes that make the Olympic Games possible.


[1] It is also noted that historically, there have been protests at Olympic games from various athletes for various reasons. See, e.g., https://time.com/5764614/political-protests-olympics-ioc-ban/.


Comments are closed