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 Olympic Games and Human Rights – Part I: Introduction to the Host City Contract – By Tomáš Grell

Editor’s note: Tomáš Grell is currently an LL.M. student in Public International Law at Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a part-time intern.


In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions. More...



Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs. More...

Nudging, not crushing, private orders - Private Ordering in Sports and the Role of States - By Branislav Hock

Editor's note: Branislav Hock (@bran_hock)  is PhD Researcher at the Tilburg Law and Economics Center at Tilburg University. His areas of interests are transnational regulation of corruption, public procurement, extraterritoriality, compliance, law and economics, and private ordering. Author can be contacted via email: b.hock@uvt.nl.


This blog post is based on a paper co-authored with Suren Gomtsian, Annemarie Balvert, and Oguz Kirman.


Game-changers that lead to financial success, political revolutions, or innovation, do not come “out of the blue”; they come from a logical sequence of events supported by well-functioning institutions. Many of these game changers originate from transnational private actors—such as business and sport associations—that produce positive spillover effects on the economy. In a recent paper forthcoming in the Yale Journal of International Law, using the example of FIFA, football’s world-governing body, with co-authors Suren Gomtsian, Annemarie Balvert, and Oguz Kirman, we show that the success of private associations in creating and maintaining private legal order depends on the ability to offer better institutions than their public alternatives do. While financial scandals and other global problems that relate to the functioning of these private member associations may call for public interventions, such interventions, in most cases, should aim to improve private orders rather than replace them. More...



What Pogba's transfer tells us about the (de)regulation of intermediaries in football. By Serhat Yilmaz & Antoine Duval

Editor’s note: Serhat Yilmaz (@serhat_yilmaz) is a lecturer in sports law in Loughborough University. His research focuses on the regulatory framework applicable to intermediaries. Antoine Duval (@Ant1Duval) is the head of the Asser International Sports Law Centre.


Last week, while FIFA was firing the heads of its Ethics and Governance committees, the press was overwhelmed with ‘breaking news’ on the most expensive transfer in history, the come back of Paul Pogba from Juventus F.C. to Manchester United. Indeed, Politiken (a Danish newspaper) and Mediapart (a French website specialized in investigative journalism) had jointly discovered in the seemingly endless footballleaks files that Pogba’s agent, Mino Raiola, was involved (and financially interested) with all three sides (Juventus, Manchester United and Pogba) of the transfer. In fine, Raiola earned a grand total of € 49,000,000 out of the deal, a shocking headline number almost as high as Pogba’s total salary at Manchester, without ever putting a foot on a pitch. This raised eyebrows, especially that an on-going investigation by FIFA into the transfer was mentioned, but in the media the sketching of the legal situation was very often extremely confusing and weak. Is this type of three-way representation legal under current rules? Could Mino Raiola, Manchester United, Juventus or Paul Pogba face any sanctions because of it? What does this say about the effectiveness of FIFA’s Regulations on Working with Intermediaries? All these questions deserve thorough answers in light of the publicity of this case, which we ambition to provide in this blog.More...


International and European Sports Law – Monthly Report – April 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.More...

The Reform of FIFA: Plus ça change, moins ça change?

Since yesterday FIFA is back in turmoil (see here and here) after the FIFA Council decided to dismiss the heads of the investigatory (Cornel Borbély) and adjudicatory (Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Miguel Maduro) of the Governance and Review Committee. It is a disturbing twist to a long reform process (on the early years see our blogs here and here) that was only starting to produce some tangible results. More...

RFC Seraing at the Court of Arbitration for Sport: How FIFA’s TPO ban Survived (Again) EU Law Scrutiny

Doyen (aka Doyen Sports Investment Limited) is nothing short of heroic in its fight against FIFA’s TPO ban. It has (sometimes indirectly through RFC Seraing) attacked the ban in front of the French courts, the Belgium courts, the European Commission and the Court of Arbitration for Sport. This costly, and until now fruitless, legal battle has been chronicled in numerous of our blogs (here and here). It is coordinated by Jean-Louis Dupont, a lawyer who is, to say the least, not afraid of fighting the windmills of sport’s private regulators. Yet, this time around he might have hit the limits of his stubbornness and legal ‘maestria’. As illustrated by the most recent decision of the saga, rendered in March by the Court of Arbitration for Sport (CAS) in a case opposing the Belgium club RFC Seraing (or Seraing) to FIFA. The arguments in favour of the ban might override those against it. At least this is the view espoused by the CAS, and until tested in front of another court (preferably the CJEU) it will remain an influential one. The French text of the CAS award has just been published and I will take the opportunity of having for once an award in my native language to offer a first assessment of the CAS’s reasoning in the case, especially with regard to its application of EU law. More...

The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre.

                 

In the football world the use of unilateral extension options (hereafter UEOs) in favour of the clubs is common practice. Clubs in Europe and, especially, South America make extensive use of this type of contractual clauses, since it gives them the exclusive possibility to prolong the employment relationship with players whose contracts are about to come to an end. This option gives to a club the right to extend the duration of a player’s contract for a certain agreed period after its initial expiry, provided that some previously negotiated conditions are met. In particular, these clauses allow clubs to sign young promising players for short-term contracts, in order to ascertain their potential, and then extend the length of their contracts.[1] Here lies the great value of UEOs for clubs: they can let the player go if he is not performing as expected, or unilaterally retain him if he is deemed valuable. Although an indisputably beneficial contractual tool for any football club, these clauses are especially useful to clubs specialized in the development of young players.[2] After the Bosman case, clubs have increasingly used these clauses in order to prevent players from leaving their clubs for free at the end of their contracts.[3] The FIFA Regulations do not contain any provisions regulating this practice, consequently the duty of clarifying the scope and validity of the options lied with the national courts, the FIFA Dispute Resolution Chamber (DRC) and the CAS. This two-part blog will attempt to provide the first general overview on the issue.[4] My first blog will be dedicated to the validity of UEOs clauses in light of national laws and of the jurisprudence of numerous European jurisdictions. In a second blog, I will review the jurisprudence of the DRC and the CAS on this matter. More...

Call for papers: ISLJ Annual Conference on International Sports Law - 26-27 October 2017

The editorial board of the International Sports Law Journal (ISLJ) is very pleased to invite you to submit abstracts for its first Annual Conference on International Sports Law. The ISLJ, published by Springer in collaboration with ASSER Press, is the leading publication in the field of international sports law. Its readership includes both academics and many practitioners active in the field. On 26-27 October 2017, the International Sports Law Centre of the T.M.C. Asser Instituut and the editorial board of the International Sports Law Journal will host in The Hague the first ever ISLJ Annual Conference on International Sports Law. The conference will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the global governance of sports, the FIFA transfer regulations, comparative sports law, and much more.

More...


International and European Sports Law – Monthly Report – March 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 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