Editor’s
note: Thomas Terraz is a L.LM. candidate in
the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre
1. Sport Nationalism is Politics
Despite all efforts, the
Olympic Games has been and will be immersed in politics. Attempts to shield the
Games from social and political realities are almost sure to miss their mark
and potentially risk being disproportionate. Moreover, history has laid bare
the shortcomings of the attempts to create a sanitized and impenetrable bubble
around the Games. The first
blog of this series examined the idea of the Games as a sanitized space and
dived into the history of political neutrality within the Olympic Movement to
unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of
any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely
enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through:
(1) public protests (and their suppression by authoritarian regimes hosting the
Games), (2) athletes who use their public image to take a political stand, (3) the
IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding
the Games to countries,[1]
and (4) states that use the Games for geo-political posturing.[2] With
this background in mind, the aim now is to illustrate the disparity between the
IOC’s stance on political neutrality when it concerns athlete protest versus
sport nationalism, which also is a form of politics.
As was mentioned in part
one of this series, the very first explicit mention of politics in the Olympic
Charter was in its 1946 version and aimed to combat ‘the nationalization of
sports for political aims’ by preventing ‘a national exultation of success
achieved rather than the realization of the common and harmonious objective
which is the essential Olympic law’ (emphasis added). This sentiment was
further echoed some years later by Avery Brundage (IOC President (1952-1972))
when he declared: ‘The Games are not, and must not become, a contest between
nations, which would be entirely contrary to the spirit of the Olympic Movement
and would surely lead to disaster’.[3] Regardless
of this vision to prevent sport nationalism engulfing the Games and its
codification in the Olympic Charter, the current reality paints quite a
different picture. One simply has to look at the mass obsession with medal
tables during the Olympic Games and its amplification not only by the media but
even by members of the Olympic Movement.[4]
This is further exacerbated when the achievements of athletes are used for domestic
political gain[5] or when they are used to
glorify a nation’s prowess on the global stage or to stir nationalism within a
populace[6]. Sport
nationalism is politics. Arguably, even the worship of national imagery during
the Games from the opening ceremony to the medal ceremonies cannot be
depoliticized.[7] In many ways, the IOC has turned
a blind eye to the politics rooted in these expressions of sport nationalism
and instead has focused its energy to sterilize its Olympic spaces and stifle political
expression from athletes. One of the ways the IOC has ignored sport nationalism
is through its tacit acceptance of medal tables although they are expressly
banned by the Olympic Charter.
At this point, the rules restricting
athletes’ political protest and those concerning sport nationalism,
particularly in terms of medal tables, will be scrutinized in order to highlight
the enforcement gap between the two. More...
Editor’s
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
Since its inception, the Olympic Movement, and in particular the
IOC, has tirelessly endeavored to create a clean bubble around sport events, protecting
its hallowed grounds from any perceived impurities. Some of these perceived ‘contaminants’
have eventually been accepted as a necessary part of sport over time (e.g.
professionalism in sport),[1]
while others are still strictly shunned (e.g. political protest and
manifestations) and new ones have gained importance over the years (e.g.
protection of intellectual property rights). The IOC has adopted a variety of
legal mechanisms and measures to defend this sanitized space. For instance, the IOC has led massive efforts
to protect its and its partners’ intellectual property rights through campaigns
against ambush marketing (e.g. ‘clean venues’ and minimizing the athletes’
ability to represent their personal sponsors[2]). Nowadays,
the idea of the clean bubble is further reinforced through the colossal security
operations created to protect the Olympic sites.
Nevertheless, politics, and in particular political protest, has
long been regarded as one of the greatest threats to this sanitized space. More
recently, politics has resurfaced in the context of the IOC
Athletes’ Commission Rule 50 Guidelines. Although Rule 50 is nothing new, the
Guidelines stirred considerable criticism, to which Richard
Pound personally responded, arguing that Rule 50 is a rule encouraging ‘mutual
respect’ through ‘restraint’ with the aim of using sport ‘to bring people
together’.[3] In
this regard, the Olympic Charter aims to avoid ‘vengeance, especially misguided
vengeance’. These statements seem to endorse a view that one’s expression of
their political beliefs at the Games is something that will inherently divide people
and damage ‘mutual respect’. Thus, the question naturally arises: can the world
only get along if ‘politics, religion, race and sexual orientation are set
aside’?[4] Should
one’s politics, personal belief and identity be considered so unholy that they
must be left at the doorstep of the Games in the name of depoliticization and
of the protection of the Games’ sanitized bubble? Moreover, is it even possible
to separate politics and sport?
Even Richard Pound would likely agree that politics and sport are at
least to a certain degree bound to be intermingled.[5]
However, numerous commentators have gone further and expressed their skepticism
to the view that athletes should be limited in their freedom of expression
during the Games (see here,
here
and here).
Overall, the arguments made by these commentators have pointed out the hypocrisy
that while the Games are bathed in politics, athletes – though without their labor
there would be no Games – are severely restrained in expressing their own
political beliefs. Additionally, they often bring attention to how some of the
most iconic moments in the Games history are those where athletes took a stand
on a political issue, often stirring significant controversy at the time. Nevertheless,
what has not been fully explored is the relationship between the Olympic Games
and politics in terms of the divide between the ideals of international unity
enshrined in the Olympic Charter and on the other hand the de facto embrace of country
versus country competition in the Olympic Games. While the Olympic Charter
frames the Games as ‘competitions between athletes in individual or team events
and not between countries’, the reality is far from this ideal.[6] Sport
nationalism in this context can be considered as a form of politics because a
country’s opportunity to host and perform well at the Games is frequently used to
validate its global prowess and stature.
To explore this issue, this first blog will first take a historical
approach by investigating the origins of political neutrality in sport followed
by an examination of the clash between the ideal of political neutrality and
the reality that politics permeate many facets of the Olympic Games. It will be
argued that overall there has been a failure to separate politics and the Games
but that this failure was inevitable and should not be automatically viewed negatively.
The second blog will then dive into the Olympic Charter’s legal mechanisms that
attempt to enforce political neutrality and minimize sport nationalism, which
also is a form of politics. It will attempt to compare and contrast the IOC’s
approach to political expression when exercised by the athletes with its
treatment of widespread sport nationalism.More...
Editor's note: This report compiles the most relevant legal
news, events and materials on International and European Sports Law based on
the daily coverage provided on our twitter feed @Sportslaw_asser.
The Headlines
IOC Athlete Commission
releases its Rule 50 Guidelines for Tokyo 2020
The IOC Athlete Commission
presented its Rule 50 Guidelines for Tokyo 2020 at its annual joint meeting with the IOC Executive
Board. It comes as Thomas Bach had recently underlined the importance of political
neutrality for the IOC and the Olympic Games in his New Year’s message. Generally, rule 50 of
the Olympic Charter prohibits any political and religious expression by
athletes and their team during the Games, subject to certain exceptions. The
Guidelines clarify that this includes the ‘field of play’, anywhere inside the
Olympic Village, ‘during Olympic medal ceremonies’ and ‘during the Opening,
Closing and other official ceremonies’. On the other hand, athletes may express
their views ‘during press conferences and interview’, ‘at team meetings’ and
‘on digital or traditional media, or on other platforms. While rule 50 is
nothing new, the Guidelines have reignited a debate on whether it could be
considered as a justified restriction on one’s freedom of expression.
The IOC has made the case
that it is defending the neutrality of sport and that the Olympics is an
international forum that should help bring people together instead of focusing
on divisions. Specifically, Richard Pound has recently made the
argument that the Guidelines have been formulated by the athletes themselves and
are a justified restriction on free expression with its basis in ‘mutual
respect’. However, many commentators have expressed their skepticism to this
view (see here, here and here) citing that politics and
the Olympics are inherently mixed, that the IOC is heavily involved in politics,
and that the Olympics has often served as the grounds for some of history’s
most iconic political protests. All in all, the Guidelines have certainly been
a catalyst for a discussion on the extent to which the Olympics can be
considered neutral. It also further highlights a divide between athlete
committees from within the Olympic Movement structures and other independent
athlete representation groups (see Global Athlete and FIFPro’s statements on rule 50).
Doping and Corruption
Allegations in Weightlifting
The International
Weightlifting Federation (IWF) has found itself embroiled in a doping and
corruption scandal after an ARD documentary was aired early in
January which raised a wide array of allegations, including against the
President of the IWF, Tamás Aján. The documentary also included hidden camera interviews
from a Thai Olympic medalist who admits having taken anabolic steroids before
having won a bronze medal at the 2012 London Olympic Games and from a team
doctor from the Moldovan national team who describes paying for clean doping
tests. The IWF’s initial reaction to the documentary was
hostile, describing the allegations as ‘insinuations, unfounded accusations and
distorted information’ and ‘categorically denies the unsubstantiated’
accusations. It further claims that it has ‘immediately acted’ concerning the
situation with the Thai athletes, and WADA has stated that it will follow up
with the concerned actors. However, as the matter gained further attention in
the main stream media and faced increasing criticism, the IWF moved to try to ‘restore’ its reputation. In practice, this means
that Tamás Aján has ‘delegated a range of operation responsibilities’ to Ursual
Papandrea, IWF Vice President, while ‘independent experts’ will conduct a
review of the allegations made in the ARD documentary. Richard McLaren has been
announced to lead the investigation
and ‘is empowered to take whatever measures he sees fit to ensure each and
every allegation is fully investigated and reported’. The IWF has also stated
that it will open a whistleblower line to help aid the investigation.More...
Editor’s
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1
Introduction
The International Olympic Committee (IOC), after many years of ineffective
pushback (see here,
here
and here)
over bye law 3 of rule 40[1] of
the Olympic Charter (OC), which restricts the ability of athletes and their
entourage to advertise themselves during the ‘blackout’ period’[2]
(also known as the ‘frozen period’) of the Olympic Games, may have been gifted a
silver bullet to address a major criticism of its rules. This (potentially) magic
formula was handed down in a relatively recent
decision of the Bundeskartellamt, the German competition law authority,
which elucidated how restrictions to athletes’ advertisements during the frozen
period may be scrutinized under EU competition law. The following blog begins
by explaining the historical and economic context of rule 40 followed by the
facts that led to the decision of the Bundeskartellamt. With this background,
the decision of the Bundeskartellamt is analyzed to show to what extent it may serve
as a model for EU competition law authorities. More...
Editor's Note: Ryan Gauthier
is Assistant Professor at Thompson Rivers University in Canada. Ryan’s
research addresses the governance of sports organisations, with a
particular focus on international sports organisations. His PhD research
examined the accountability of the International Olympic Committee for
human rights violations caused by the organisation of the Olympic Games.
Big June 2019 for Olympic Hosting
On June 24, 2019, the International
Olympic Committee (IOC) selected Milano-Cortina to host the 2026 Winter Olympic
Games. Milano-Cortina’s victory came despite a declaration that the bid was “dead”
just months prior when the Italian government refused
to support the bid. Things looked even more dire for the Italians when 2006 Winter Games
host Turin balked at a three-city host proposal. But, when the bid was presented to
the members of the IOC Session, it was selected over Stockholm-Åre by 47 votes to 34.
Just two days later, the IOC killed
the host selection process as we know it. The IOC did this by amending two
sections of the Olympic Charter in two key ways. First, the IOC amended Rule 33.2, eliminating the
requirement that the Games be selected by an election seven years prior to the
Games. While an election by the IOC Session is still required, the
seven-years-out requirement is gone.
Second, the IOC amended Rule 32.2 to
allow for a broader scope of hosts to be selected for the Olympic Games. Prior
to the amendment, only cities could host the Games, with the odd event being
held in another location. Now, while cities are the hosts “in principle”, the
IOC had made it so: “where deemed appropriate, the IOC may elect several
cities, or other entities, such as regions, states or countries, as host of the
Olympic Games.”
The change to rule 33.2 risks
undoing the public host selection process. The prior process included bids
(generally publicly available), evaluation committee reports, and other
mechanisms to make the bidding process transparent. Now, it is entirely
possible that the IOC may pre-select a host, and present just that host to the
IOC for an up-or-down vote. This vote may be seven years out from the Games,
ten years out, or two years out. More...
My latest article has just been published online by the Journal of Law and Society. It is available open access here.
The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.
As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.
In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.
Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.
Good read! (And do not hesitate to share your feedback)
Editor’s note:
Tomáš Grell holds an LL.M.
in Public International Law from Leiden University. He contributes to
the work of the ASSER International Sports Law Centre as a research
intern.
It has been more
than seven years since the FIFA Executive Committee awarded the 2022
World Cup to Qatar. And yet only in November 2017 did the Qatari government
finally agree to dismantle the controversial kafala system, described by
many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant
workers have reportedly been exposed to a wide range of abusive practices such
as false promises about the pay, passport confiscation, or appalling working
and living conditions.[1]
On top of that, some workers have paid the highest price – their life. To a
certain extent, all this could have been avoided if human rights had been taken
into account when evaluating the Qatari bid to host the tournament. In such a
case, Qatar would not have won the bidding contest without providing a
convincing explanation of how it intends to ensure that the country's poor human rights record
will not affect individuals, including migrant workers, contributing to the
delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an
integral part of the bid.
Urged by Professor
John Ruggie and his authoritative recommendations,[2]
in October 2017 FIFA decided to include human rights within the criteria for
evaluating bids to host the 2026 World Cup, following similar steps taken
earlier this year by the International Olympic Committee (IOC)
and UEFA in the context
of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part
blog critically examines the role human rights play in the new bidding
regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on
the IOC and UEFA. The second part then takes a closer look at FIFA and aims to
use a comparative analysis to determine whether the new bidding regulations are
robust enough to ensure that selected candidates abide by international human
rights standards.More...
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.
The Headlines
2024 and 2028 Olympic Games to be held in Paris and
Los Angeles respectively
On 13 September 2017,
the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and
2028 Olympic Games respectively. On this occasion, the IOC President Thomas
Bach said that ''this historic double
allocation is a 'win-win-win' situation for the city of Paris, the city of Los
Angeles and the IOC''. The idea of a tripartite agreement whereby two
editions of the Olympic Games would be awarded at the same time was presented
by a working group of the IOC Vice-Presidents established in March 2017. Both
Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in
particular through the use of a record-breaking number of existing and
temporary facilities. In addition to economic aspects, it will be worthwhile to
keep an eye on how both cities will address human rights and other similar concerns
that may arise in the run-up to the Olympic Games. More...
This is a follow-up
contribution to my previous blog on human rights
implications of the Olympic Games published last week. Together with
highlighting some of the most serious Olympic Games-related human rights
abuses, the first part has outlined the key elements of the Host City Contract
('HCC') as one of the main legal instruments regulating the execution of the
Olympic Games. It has also indicated that, in February 2017, the International
Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights
obligations. Without questioning the potential significance of inserting human
rights obligations to the 2024 HCC, this second part will refer to a number of
outstanding issues requiring clarification in order to ensure that these
newly-added human rights obligations are translated from paper to actual practice. More...
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...