Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

The 21^st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played.

The Warm-up: Preparing for the Game

Even though the recently published update by FIFA’s Human Rights Advisory Board compliments FIFA on its increased efforts for tackling human rights issues related to this year’s World Cup, it is no secret that thousands of workers were exposed to severe human rights violations while working on World Cup construction sites in Russia.[1] Human rights groups such as Human Rights Watch (HRW) extensively reported on the structural exploitation that workers were facing, including unsafe working conditions leading to numerous injuries and the death of 17 workers, forced illegal work due to lack of employment contracts, and cases of non-payment or serious delays in payment of wages.  Those workers that dared to file a complaint were threatened with retaliation and non-payment of wages.[2] Furthermore, journalists and human rights advocates that tried to report on these cases have been intimidated, denied entry into the country, or even arrested while carrying out their investigations.

Blaming the occurrence of these human rights violations on Russia being this year’s World Cup’s host would ignore the fact that these violations are recurring in the context of mega-sporting events (MSEs) like the Summer or Winter Olympic Games or the World Cup. To a certain extent, these events heighten pre-existing human rights risk in the host country and thereby increase the likelihood for violations to occur. Thus, numerous stories of exploitation of migrant workers have been documented in relation to the construction works for the 2022 World Cup in Qatar. Furthermore, worker’s rights are not the only rights that are at risk during the delivery of MSEs. Other common types of human rights abuses associated with hosting MSEs are cases of forced displacement, infringements of participatory rights, and infringements of freedom of expression and the right to protest.[3] Shortly before and during these events, reports on incidents of excessive use of force by local police and private security forces, as well as arbitrary arrest and criminalization of homeless people and street children are also commonplace.[4]

The First Half: Establishing Responsibility

The key challenge in addressing these cases is to identify the actor and actions responsible for these harmful outcomes. However, MSEs like the FIFA World Cup are jointly organized and staged by a mix of public, private, national, and international actors. International sports bodies, like FIFA or the International Olympic Committee (IOC), set the terms and conditions under which these events can be hosted. Host countries agree to these conditions by submitting government guarantees and declarations and by adopting special event-related legislation. Furthermore, local and regional authorities issue permits and give orders to enable and facilitate event-related operations. The local organizing committees are responsible for living up to the conditions set by the sports bodies and for hiring the necessary contractors. These range from local to international firms, from city planners and logistic experts, to food suppliers and construction firms.[5] Further companies that profit from the MSE-business are international broadcasting firms and recruitment agencies. The financing of these events is secured through national and international corporate sponsors, such as McDonald’s and Budweiser for this year’s FIFA World Cup.[6]

The intuitive thing to do from a human rights perspective would be to call upon the responsibility of Russia as the host country to address these abuses, since states are not only responsible for respecting, protecting and fulfilling human rights but also for preventing third parties from abusing human rights on their territory. However, this would ignore the real issue at stake: the fact that MSE-related human rights abuses are the result of complex collaboration between multiple actors involved in delivering these events. In the case of exploitation of workers on World Cup construction sites in Russia, construction companies contribute by imposing abusive employment conditions; recruitment agencies by recruiting the workers under false promises; the state by failing to protect the workers and potentially even facilitating certain practices through its event-related policies; FIFA by requiring a certain number and standard of stadiums for the event; and finally also the sponsors by providing the necessary finances.

This rather simplified identification of the various contributing actors only presents a broad indication of how they contribute to these violations and share responsibility. The problem is that the entanglement of actors and their operations creates highly complex governance structures. In order to identify those actors responsible for the violations, victims first have to untangle these structures and retrace the chain of decisions taken, permits issued, orders given, and actions taken. Even if that succeeds, the key challenges are to identify which of the contributing acts would give rise to legal responsibility and to establish responsibility for those actors that have no direct obligations under international human rights law.

The Second Half:  Establishing Accountability

The entanglement of actors and their contributions does not only impede the identification of the responsible actors but also the identification of adequate accountability mechanisms. The business and human rights field knows a broad spectrum of mechanisms ranging from judicial to non-judicial, and from state-based to operational level mechanisms. Up to this point, the few attempts to hold certain actors accountable for MSE-related human rights violations either have been unsuccessful or only addressed a fraction of the actors or types of violations involved. For example, FIFA’s responsibility for World Cup-related human rights abuses has been the subject of a court case in Switzerland and two specific instances dealt with by the Swiss National Contact Point (NCP). The court in Zürich dismissed the case with unusual speed on mainly practical grounds (a more detailed discussion of the judgement can be found here).[7] The mediation procedure at the Swiss NCP led to the creation of a monitoring system for decent work and safety in the workplace for migrant construction workers in Qatar[8], but their living standards and the abuses of recruitment agencies were not addressed.

What these attempts highlight is that the main shortcomings of available mechanisms amount to a lack of access to these mechanisms for affected groups and individuals and a lack of human rights receptivity of existing mechanisms. In light of these shortcomings, new mechanisms are currently being developed and existing mechanisms are being tested in the MSE and human rights context. Just in time for the start of the World Cup, FIFA launched its new complaint mechanism for human rights defenders, which provides human rights defenders and media representatives with an avenue for complaints for situations “in which they consider that their rights have been unduly restricted when conducting work in relation to FIFA’s activities”.[9] Via an online platform, human rights defenders, journalists and other media representatives can submit a complaint and FIFA commits to ensure that it will apply an “appropriate follow-up processes” to it.[10] FIFA itself is supposed to assess these complaints and seek cooperation with third parties that are involved in the matter and relevant institutions that can support the complainant.[11] With regard to testing existing mechanisms, the possibilities for using arbitration as means to address MSE-related human rights issues opened up with the revised bidding and hosting regulations of FIFA and the IOC. Both entail provisions for human rights protection and arbitration clauses, referring to the Court of Arbitration for Sports, for challenging the performance of the host-city or -country under any of the provisions.

The Overtime: The Winner Takes its Share

One way of interpreting these recent efforts of international sports bodies to increase awareness and respect for human rights protection in connection with their events is to argue that they are increasingly becoming aware of their share of responsibility and accountability. Indeed, the increased awareness of adverse human rights impacts of MSEs triggered a number of initiatives that aim at raising human rights standards in the MSE business. In 2016, the MSE platform for human rights has been created, which is a multi-stakeholder coalition consisting of international and intergovernmental organisations, governments, sports governing bodies, athletes, unions, sponsors, broadcasters, and civil society groups, who are committed to take joint action to protect human rights throughout the MSE lifecycle. Recently, this multi-stakeholder initiative created the Centre for Sport and Human Rights, which is an independent center that connects stakeholders and affected groups to share knowledge, build capacity, and strengthen accountability for adverse human rights impacts of sports more generally. Concrete event-related examples of initiatives exist as well. In the run-up to this year’s World Cup, FIFA, Russian authorities and representatives of trade unions took a joint effort to set up a monitoring program for labour conditions on World Cup construction sites. Similar processes led to the establishment of a worker welfare monitoring system for workers on World Cup construction sites in Qatar.

Nevertheless, significant challenges remain in relation to concrete cases of MSE-related human rights abuses and it is important that these efforts do not fade after the final match has been played. MSE-related human rights violations do not automatically stop when the event is over. In some cases, for instance cases of forced evictions, violations continue as long as victims have not been compensated adequately. These challenges do not make it a hopeless endeavour, but they highlight that more work and change is needed before responsibility for MSE-related human rights violations can be established. Especially, most of the developments and efforts of sports governing bodies are rather recent and only apply to events that will take place in the future. Hence, it remains to be seen whether the revised bidding regulations can ensure that future World Cups will have a more positive human rights legacy and eventually avoid adverse human rights impacts altogether.

[1] Business & Human Rights Resource Centre, ‘Russia 2018 FIFA World Cup’ <https://business-humanrights.org/en/russia-2018-fifa-world-cup> accessed 14 February 2018.

[2] ibid 27.

[3] Megan Corrarino, ‘“Law Exclusion Zones”: Mega-Events as Sites of Procedural and Substantive Human Rights Violations’ (2014) 17 Yale Human Rights and Development Law Journal 180.

[4] Lucy Amis and John Morrison, ‘Mega-Sporting Events and Human Rights—A Time for More Teamwork?’ (2017) 2 Business and Human Rights Journal 135, 137.

[5] For a more elaborate overview of actors, see Amis and Morrison (n 5) at 136.

[6] Fédération Internationale de Football Association, ‘2018 FIFA World Cup Russia^TM - FIFA Partners’ (FIFA.com, 2017) <http://www.fifa.com/worldcup/organisation/partners/index.html> accessed 15 February 2018.

[7] FNV, Bangladeshi Free Trade Union Congress, BWI & Nadim Shariful Alam v FIFA Handelsgericht Kanton Zürich (3 January 2017).

[8] Specific Instance regarding the Fédération Internationale de Football Association (FIFA) submitted by the Building and Wood Workers’ International (BWI) - Final Statement Swiss National Contact Point (2 May 2017).

[9] FIFA, ‘FIFA Statement on Human Rights Defenders and Media Representatives’ (2018) 4, para 14 <https://resources.fifa.com/image/upload/ejf1ecdku14lm2v9zc03.pdf> accessed 12 June 2018.

[10] ibid.

[11] ibid 5, para 15.

Introduction[1]

The Court of Arbitration for Sport (CAS) registers approximately 300 cases every year. Recently, the Swiss Federal Supreme Court – which is the sole judicial authority to review arbitral awards rendered in Switzerland – reminded in the Matuzalém Case (Case 4A_558/2011) that CAS awards may be enforced in other States that are parties to the New York Convention on the recognition and enforcement of foreign arbitral awards.

However, in that case, the Federal Court failed to recognize the main intent of FIFA, which is to avoid foreign State courts’ interference – even to the detriment of a plaintiff’s right of having the option to challenge a CAS award in a non-Swiss jurisdiction. Article 67(2-3) FIFA Statutes requires that provision shall be made to CAS arbitration and prohibits FIFA members to have recourse to courts of law unless provided for by FIFA regulations. Member associations must accordingly insert an arbitral agreement in their statutes on the recognition of CAS to resolve disputes under Article 10(4)(c) FIFA Statutes. Regarding labour-related disputes, Article 22 FIFA Regulations on the Status and Transfer of Players in conjunction with Article 5 FIFA Statutes 2003 has carved out an exception to the aforesaid FIFA ‘exclusion’ and ‘allows’ FIFA members to seek redress before civil courts. Nonetheless, FIFA could still use its disciplinary power to enforce decisions (e.g. CAS awards). In addition, Article 64(1) FIFA Disciplinary Code explicitly stipulates that ‘[a]nyone who fails to pay another person […] or FIFA … money…, even though instructed to do so by … a subsequent CAS appeal decision …, or anyone who fails to comply with another [CAS appeal] decision …’, will be disciplinary sanctioned (e.g., fine, ban on any football-related activities, expulsion (member association), relegation (club) and transfer ban (club)). This is a typical case of so-called ‘arbitration with a reduced consensual character’ (Steingruber 2012), which is contrary to the consensual spirit that underlies private arbitration.

It should also be noted that in the Cañas case (Case 4P.172.2006, par. 4.3.2.2) the Swiss Federal Supreme Court recognized and tolerated the athlete’s reduced consent to arbitration (under Article 2 of the Player's Consent and Agreement to ATP Official Rulebook) in order to be able to practice tennis as a professional. It is moreover ‘based on the continuing possibility of an appeal acting as a counterbalance to the “benevolence” with which it is necessary to examine the consensual nature of recourse to arbitration where sporting matters are concerned’ (Case 4P.172.2006, para. 4.3.2.3). In other words, the application of ex post reviews of CAS awards by the Federal Court is a sine qua non to its acceptance of an athlete’s reduced consent to arbitration.

CAS awards could be challenged before courts, however, if they are incompatible with public policy (of Switzerland or EU Member States et cetera). 

CAS awards – Swiss notion of substantive public policy

As far as arbitration is concerned, national courts generally adopt a deferent attitude to arbitration, mainly reviewing the due process components and only entering substantial matters if they are incompatible with substantive public policy. Accordingly, the parties involved can only challenge arbitral awards on substantive grounds if they contravene the national notion of substantive public policy.

The Swiss Federal Supreme Court has only once annulled an international arbitral award rendered in Switzerland for being incompatible with substantive public policy. Interestingly, the case concerns a CAS (appeal) award.

It should be noted that the national notion of public policy may vary per jurisdiction. Accordingly, enforcing arbitral awards that have been annulled at the seat of arbitration – e.g. the Matuzalém case – could still be enforced in e.g. Austria, Croatia, Denmark, France[2], Ireland, Luxembourg, The Netherlands[3], Poland and Spain.[4] However, arbitral awards that have been set aside at the seat of arbitration are likely to be refused enforcement in e.g. Germany, Hungary, Italy and the United Kingdom.[5] 

CAS awards – EU notion of substantive public policy

From an EU law perspective, it must be taken into consideration that enforcing arbitral awards like, e.g., CAS awards by Member States’ courts may affect the internal market. The Court of Justice already dealt with this topic and introduced a broad notion of public policy in the Eco Swiss Case (Case C-126/97) by ruling that Article 101 TFEU may be regarded as a public policy matter in the sense of Article V(2)(b) of the New York convention. In the Manfredi Case (Joined cases C-295/04 to C-298/04), the Court further stated (para. 31): ’Articles … [101-102 TFEU] are a matter of public policy which must be automatically applied by national courts …’. In other words, national courts do have an ex officio duty to exercise control during inter alia enforcement proceedings of arbitral awards. In the Nordsee Case (C-102/81), the Court further stressed the importance of ex post reviews of arbitral awards by national courts.

The latter is especially relevant in reference to their obligation to ensure the uniform application of EU law. The Court stated (para 13) that private arbitral tribunals are not to be considered as ‘any court or tribunal’ under Article 267 TFEU and therefore are not allowed to directly submit an application for a preliminary ruling on EU law. However, in case an arbitral tribunal is, inter alia, established by law, permanent, independent, has a compulsory jurisdiction, its procedure is inter partes and it applies rules of law, the Court of Justice recently (Case C‑555/13) characterised it as ‘any court or tribunal’. Consequently, a mandatory arbitral tribunal established in a Member State may refer questions to the Court of Justice for a preliminary ruling.

As regards to doping-related disputes, the WADA Code is mandatory in substance and must be followed by signatories like, e.g., National Anti-Doping Organizations. Moreover, all Member States have designated a National Anti-Doping Organization (Appendix 1 WADA Code) as the primary authority to adopt and implement inter alia anti-doping measures at the national level. In addition, Article 23.2.2 in conjunction with Article 13.2.1 WADA Code refers inter alia to the exclusive jurisdiction of the CAS Appeal Arbitration, which means that CAS has been recognized by all Member States as a mandatory arbitral tribunal (established in Switzerland) with regard to doping-related disputes. However, as opposed to the regulations of sports governing bodies like FIFA, the WADA Code explicitly mentions the application of ex post reviews of CAS awards by national courts.                                                       

According to the Court, reviewing arbitral awards should be limited in scope and refusing to enforce foreign arbitral awards (i.e. CAS awards) by national courts should only be possible in exceptional circumstances, both in the interest of efficient arbitral proceedings. As previously mentioned, national courts are generally deferent towards arbitral awards. Moreover, they do not review the way the law is applied by the arbitrators. A national court’s review is confined to the nature and impact of the decision and its procedural aspects. Accordingly, the Court accepted the national courts’ limited scope of review in reference to the principle of procedural autonomy to implement and enforce national and EU law. Moreover, in the interest of good administration, fundamental principles of procedure recognized by all Member States must prevail. This procedural autonomy finds its limit in the need to warranty the effet utile of EU competition law as fully as other public policy matters (i.e. principle of equivalence). Moreover, according to the Court, EU competition law is a fundamental provision for the realisation of the internal market and must therefore be regarded as a public policy matter by national courts when enforcing arbitral awards. Thus, the Court ruled that a national court’s limited review of arbitral awards must extend to EU competition law, which should be integrated in the Member State’s national notion of public policy in order to ensure that EU law actually takes effect (principle of effectiveness).

The Court furthermore stated that reviewing an arbitral award for being incompatible with public policy should only occur under exceptional circumstances. Only if the effects of enforcing an arbitral award by a national court contravene the most fundamental principles of law in the respective jurisdiction, it may be denied recognition and enforcement for being incompatible with public policy. In order to qualify as such, a competition law violation must therefore be regarded as very serious, e.g. a complete disregard of an obvious and serious violation such as a cartel. In addition, the Court especially referred to the prohibition laid down in Article 101(1) TFEU, which is primarily a matter of substance. In reference to the national courts’ limited scope of review, one can therefore argue that infringements to EU competition law may be regarded as substantive public policy violations during inter alia enforcement proceedings of arbitral awards.

Finally, competition law is not the internal market’s only fundamental provision. It could be extrapolated that the Court relied on a wide notion of public policy in Eco Swiss. For instance, the fundamental provisions of free movement may be applicable in a CAS award’s enforcement proceedings and could, in principle, qualify as public policy matters in exceptional circumstances. If, e.g., enforcement proceedings of the Matuzalém CAS award were sought before Member States’ courts, a violation of the freedom of workers (he played for Lazio Roma between 2008 and 2013) or service providers (e.g., personal sponsorship or endorsement deals) could be invoked to bar the recognition and enforcement of the award.

Conclusion

CAS awards are potentially fragile at the enforcement stage as they may contradict national States’ understanding of the public policy exception. This is even more so if one characterises EU competition law and EU free movement rights as public policy concerns. However, in practice the enforcement of CAS awards is very rarely used[6]. Sport governing bodies can rely on their contractual disciplinary power to ban athletes from the competition they organize and thus do not rely on national courts to enforce CAS awards. Nevertheless, banned athletes could initiate action for damages against sports governing bodies and force them to ask for the recognition and enforcement of the award in their defence plea. Thus, there is a very indirect (and protracted) way to challenge CAS award on the basis of EU public policy, but it is a windy and rocky legal path.

Epilogue

A personal message to Claudia Pechstein - German Speedskater and Olympic Champion (five gold, two silver and two bronze): Pursuant to Article 25(6) of the ISU Constitution, the ISU is also complicit and the respective CAS awards could accordingly be challenged for being incompatible with substantive public policy if they were to be enforced in a Member State …

[1] Notes are mostly ommitted. A comprehensive article will be published in 2014.

[2] E.g., Cour de cassation, 23 March 1994, Yearbook Commercial Arbitration, Vol XX (1995), p. 663.

[3] E.g., Amsterdam Court of Appeal, Case No. 200.005.269/01, April 28, 2009; Amsterdam Court of Appeal, Case No. 200.100.508/01, September 18, 2012.

[4] ICC Guide to national procedures for the recognition and enforcement of awards under the New York convention, ICC Court of Arbitration Bulletin (Vol 23, Special Supplement) 2012, p. 20.

[5] Ibid.

[6] It should be noted that, as far as we know, only one CAS ordinary award has actually been enforced in a Member State: IMFC Licensing B.V. v. R.C.D. Espanyol de Barcelona, Tribunal Superior de Justicia de Catalunya, 30 May 2012 (IMFC Licensing, B.V. v. R.C.D. Espanyol de Barcelona, S.A.D.) Yearbook XXXVIII (2013) pp. 462-464.