Editor's note: Mark James is Professor of Sports Law at Manchester Metropolitan University and the author of a leading Sports Law textbook.

The opening days of the FIFA World Cup Qatar 2022 have already resulted in a number of issues of interest to sports lawyers and human rights lawyers, with FARE’s Piara Powar claiming that this is the most political major sporting event that he has attended. Both FIFA and the local organisers have been active in their suppression of expressions of support for LGBTQIA+ rights by players, fans and journalists alike, calling into question once again the legality of restricting free speech by sporting rules and regulations.

There have been two major flashpoints to date. First, seven European federations had asked FIFA for permission for their captains to wear armbands supporting the ‘OneLove’ campaign. FIFA’s response was to refuse, resulting in the German players covering their mouths for their pre-match photographs in protest at their being silenced. There are several grounds on which FIFA would seek to support its position:

•  Law 4.5 of the Laws of the Game prohibits any playing equipment from carrying any political, religious or personal slogans, statements or images.
• Regulation 4.3.1 of FIFA’s Equipment Regulations and Regulation 27.1 of the FIFA World Cup 2022 Regulations prohibits clothing or equipment that includes political, religious, or personal slogans, statements, or images, or otherwise does not comply in full with the Laws of the Game.
• Regulation 33.3 of the FIFA World Cup 2022 Regulations prohibits the display of political, religious or personal messages or slogans of any nature in any language or form by players and officials.
• Regulation 13.8.1 of FIFA’s Equipment Regulations states that for FIFA Final Competitions, the captain of each Team must wear the captain’s armband provided by FIFA (all Regulations available in the FIFA Legal Handbook 2022).

Although the DFB is considering a challenge to FIFA’s refusal to allow its captain to wear the OneLove armband, which would ultimately be heard before CAS, it is unlikely to succeed in the face of the strict requirements of the above Laws and Regulations. However, what could cause more difficulty for both FIFA and CAS is if the DFB frames its case as a challenge to the compliance of the rules that restrict players’ freedom of expression with Article 3 of FIFA’s Statutes, which states that ‘FIFA is committed to respecting all internationally recognised human rights.’ Article 3, together with the additional detail provided by FIFA’s Human Rights Policy, ensures that freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights are limitative rules that can be applied directly to FIFA’s activities, as has been argued by Bützler and Schöddert. Further, if the affected players and associations can define themselves as human rights defenders, then Article 11 of FIFA’s Human Rights Policy states that, ‘FIFA will respect and not interfere with the work of … human rights defenders who voice concerns about adverse human rights impacts relating to FIFA.’ Any challenge using this approach would be the first real test of the enforceability of the human rights protections to which FIFA claims to be committed. It would also be a test of CAS’s ability to require adherence to the human rights commitments made by ISFs and to prove that they are more than simple window-dressing.

Secondly, members of The Rainbow Wall, a contingent of LGBTQIA+ rights-supporting Welsh fans, were prevented from entering the Ahmed bin Ali stadium whilst wearing bucket hats incorporating a rainbow into its design. No explanation for why was given, however, FIFA and the local organisers would argue that openly supporting LGBTQIA+ rights with the aim of promoting legal change in a country where homosexuality is illegal is a political statement on apparel and therefore entry into the stadium wearing the rainbow hat is in breach of the Regulation 3.1.23 of the Stadium Code of Conduct. A similar argument could be used to justify preventing US journalist Grant Wahl from entering the stadium wearing a t-shirt incorporating a rainbow into its design and Danish journalist Jon Pagh from wearing the OneLove armband. However, it must be stressed that no such explanation for the prohibitions applied to these garments was provided to any of the affected fans or journalists. It must also be recognised that the opinion that promoting LGBTQIA+ rights is a political expression is highly contested. In a statement from FIFPRO, the opposing view was stated succinctly: ‘We maintain that a rainbow flag is not a political statement but an endorsement of equality and thus a universal human right.’

It is clear that, as with Rule 50 of the Olympic Charter, the chilling effect that FIFA’s Regulations have on players’ and fans’ freedom of expression is likely to be unlawful, as has been discussed at length both on this blog and on the Verfassungsblog Debate on Freedom of Expression in the Olympic Movement. Instead of revisiting these arguments, which are taken to apply to FIFA’s actions at Qatar 2022, two additional issues related to the FIFA Statutes are explored here.

Articles 3 and 4 of FIFA’s Statutes state that:

3 Human rights

FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.

4 Non-discrimination, equality and neutrality

4.1 Discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.

FIFA is a long-time supporter of pride events and in its press release for Pride Month 2022 stated:

[The] FIFA World Cup Qatar 2022™ will be a celebration of unity and diversity – a joining of people from all walks of life – regardless of race, ethnicity, religion, age, disability, sex characteristics, sexual orientation, gender identity and expression – everybody will be welcome.

Claims that all staff involved in the Qatar 2022 including public and private security forces, would be trained on how to accomplish their tasks in a non-discriminatory manner, seem not to have been operationalised effectively.

This begs the question whether FIFA is in breach of its own Statutes by refusing to allow players to express themselves freely on armbands and failing to protect fans’ freedom of expression by wearing rainbows. At the very least, FIFA should have ensured that a protective LGBTQIA+ regime in the stadiums and the fan zones during the World Cup was implemented to enable the ‘celebration of unity and diversity’ it claims that Qatar 2022 should be. FIFA’s actions in Qatar call into question its claims to be an inclusive and supportive leader on anti-discrimination and human rights, and is likely to see a backlash from the LGBTQIA+ community that it claims to support when it engages with Pride 2023; accusations of hypocrisy and virtue signalling are guaranteed.

With no resolution to the debate at the time of writing, Articles 3 and 4 could provide players and fans with the opportunity to demonstrate their support for human rights and anti-discrimination causes. At the Sochi 2014 Winter Olympics, Athlete Ally developed the ‘Principle 6 Campaign.’ Instead of criticising directly Russia's so called anti-gay laws, which are currently in the process of being extended, athletes promoted Principle 6 of the Olympic Charter, which at the time stated that, ‘Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.’ The eventual outcome of this campaign was the addition of sexual orientation to the list of characteristics protected by Principle 6. Unlike at Sochi 2014, there is no need to campaign for a change to either of Articles 3 or 4 of the FIFA Statutes; instead, activists want to ensure that they are being applied. An immediate response for both players and fans would be for them to quote specifically from Articles 3 and 4, as it would be extremely difficult for FIFA to claim that they are making political or personal statements when promoting FIFA’s own foundational values. A creative reminder of what FIFA claims to stand for could enable player and fan activism to continue throughout the tournament, and beyond, whilst affected players and associations can develop a compelling case for the restrictions on freedom of expression to be struck out by CAS, the Swiss Federal Tribunal and/or the European Court of Human Rights.

‎Editor's Note: Ryan is Assistant Professor at Thompson Rivers University, he defended his PhD at Erasmus University Rotterdam in December 2015. His dissertation examined human rights violations caused by international sporting events, and how international sporting organisations may be held accountable for these violations.

Introduction

On Sunday, August 21, the 2016 Summer Olympic Games in Rio de Janeiro will end. The spotlight will dim not only on the athletes who return to their home countries to ply their trade in relative obscurity, but also on the country of Brazil.[1] Once the Games have ended, life will go ‘back to normal’, although for many residents of Rio de Janeiro, what is ‘normal’ is anything but.

Watching the opening ceremonies from the favelas – Andrej Isakovic via Getty Images

“A New World” for Favela Residents

While the world has been preoccupied with Zika, the Brazilian corruption crisis, the cesspool that is Guanabara Bay, and the worrying state of some of the sporting venues, the displacement of persons is perhaps the largest problem not only facing the Games, but is the largest one caused (or at least exacerbated) by the Games themselves. Since Rio de Janeiro was selected to be the host of the Olympic Games in 2009, over 77,000 individuals (22,000 families) have been evicted from their homes. Most, if not all, of these individuals were evicted from their homes in the favelas, or slums, communities that began to appear in earnest in the 1970s as Brazil, and Rio de Janeiro in particular, began to urbanize. Currently, favelas are home to 1.4 million people, or about 22% of Rio’s population. It is very likely that not all of these evictions were related to the Games directly. City officials have stated that only Vila Autodromo was directly-affected by the Games, as this particular favela was turned into a parking lot for the Olympic Park and twenty homes for those who refused to leave (Reuters provides a good before/after comparison).

Vila Autodromo (Olympic Park under construction) - Genilson Araújo / Parceiro/O Globo

However, seemingly taking their cue from Rio 2016’s slogan, “Um mundo novo” (“A New World”), city officials have used the Olympic Games as an excuse to ‘re-imagine’ the city on a broader scale. In a 2012 interview, the mayor of Rio stated that “The Olympics pretext is awesome; I need to use it as an excuse for everything…Now all that I need to do, I will do for the Olympics. Some things could be really related to the Games, others have nothing to do with them.” As such, people from favelas that have nothing to do with the Games have been evicted from their homes, with the Games creating the pseudo-state of ‘emergency’ that has, in other cities that have hosted the Games, been used as an excuse to bypass normal procedures and do away with normal protections, in the mold of Naomi Klein’s “shock capitalism”.

The Rio government has claimed to offer financial packages and resettlement options for those who were displaced. These compensation packages were imperfect, as the government offered less than market value for the homes, and those who were relocated may have been relocated anywhere from several to dozens of kilometers away from their former residence, uprooting their businesses or employment, and their social and family lives. However, the relocation policy appears to be the velvet glove concealing the iron fist. For those who resisted relocation, the city cut off their water, and halted garbage pickup and postal service, while violent clashes between residents and police have also been reported. While not directly-related to evictions, but closely related to conditions in the favelas, there has been a reported spike in police killings of street children to “clean the streets” ahead of the Games. While new housing is being built in Rio, much of it is set to be high-end condos, not affordable housing.

International Standards Regarding Housing

The focus of this particular blog post is not the legality of the displacement, per se. That is an issue best addressed by Brazilian lawyers. However, there are international standards that Brazil should live up to. The Universal Declaration of Human Rights recognises a right to own property, and prohibits the arbitrary deprivation of property. Another international instrument of wide application, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), recognises a right to an adequate standard of living. The ICESCR Committee, in its General Comments in 1991 and 1997, has interpreted this standard to include a right against forced evictions. If an eviction does occur, rights to information and participation by those who are affected arise. Finally, when an eviction does take place, a right to compensation and adequate resettlement attaches.

The case of Rio seems to suggest that forced evictions have likely occurred, based on the sheer scale of those who were evicted. Given the timeline of preparing for the Games, provisions on notice and information appear to have been curtailed or cancelled altogether, given that the city went to work on evicting persons immediately after Rio was awarded the right to host the Games in 2009. While some residents, particularly of Vila Autodromo, received compensation and alternative housing, in many cases there appears to be disagreement as to whether compensation has been offered at all with locals saying they have not received compensation, while city authorities deny evicting families without compensation. Actions such as police raids, and cutting off public services also suggest the evictions approach the threshold of ‘forced’ rather than voluntary/negotiated. Regardless of whether the letter of these international standards has been violated, the scope and pace of the evictions is of great concern.

IOC Stance Regarding Displacement

In particular, it should be distressing to readers to see the International Olympic Committee (IOC) seemingly stand by while these evictions occur in the name of the Games. And it is not as if the IOC has no clue that evictions take place due to the Games. For many Games, at least some displacement occurs to make way for infrastructure, while the 2008 Beijing Games saw an estimated 1.25 million people evicted due to Olympic-related projects.

The IOC has responded to the problems of displacement, pledging in 2009 to intervene with the Organising Committee for the Olympic Games (the OCOG – the actual body that is responsible for Games’ preparations) in situations where people who were displaced due to Olympic venue construction were ‘mistreated’. However, the IOC has not said anything publicly in regards to the evictions, and there is no public information regarding any IOC intervention.

Following the IOC’s Agenda 2020, and its recommendations on ‘social sustainability’, the IOC now requires cities bidding to host the Olympics to identify projects that may require displacement of existing communities, and to confirm that the procedures used to displace persons will conform to national and/or international standards. However, promises made by host cities are not always lived up to, as can be seen by Rio’s failed promises to treat 80% of the water flowing into Guanabara Bay, and treating only 21% on the eve of the Games. Rio is apparently also able to get away with such failed promises consequence-free, despite the risk of harm to athletes competing in and around the waters.

The Games Cannot Fix All Ills, But They Should Avoid Creating New Ones…

Ultimately, the largest problem with the Olympic Games is a lack of accountability. The IOC, an organisation based in Switzerland, holds the rights to the Games and selects the host city, but does not actually organise the Games. As such, the IOC often appears to act as though what happens ‘on the ground’ is neither its concern nor its responsibility. Those who actually organise the Games, particularly the OCOG and Host City (the National Olympic Committee of the host country also participates, but is not relevant here), often have limited accountability to those who are harmed by the Games. The OCOG disbands shortly after the Games are over, leaving the Host City holding the bag. The Host City’s accountability is entirely dependent on the political and legal structures of the country, and in countries like Russia (Sochi 2014, World Cup 2018), China (Beijing 2008, Beijing 2022), but even in more established democracies, Host City officials may have limited accountability.

Now is the time that commentators jump up-and-down to shout that hosting the Olympic Games in a single site would fix all of the problems. By placing the Games in Athens (no permanent Winter Games host is ever suggested), there wouldn’t be a need to host the Games in countries with questionable human rights records, or to watch as every single Olympic Games goes over-budget. However, rarely are suggestions made as to who will pay for the infrastructure, which will likely need to be periodically updated (it might be a bit hard for the Greek government to afford it at this point), cope with the criticism that the Games would be cemented as a Euro-centric enterprise, or the other problems that would arise with a permanent host. The Olympic Games are going to continue to be held in countries with imperfect human rights records (which would be pretty much all of them), and in countries with poor human rights records.

All of this is to say that the IOC needs to begin to actually enforce its ideals, and its own mandate of ensuring an Olympic Games that is socially sustainable. The IOC and the Olympic Games should not be the solution to human rights problems in a host country, for they cannot be. However, the IOC does have a minimum moral responsibility to ensure that the Olympic Games themselves are prepared for with the utmost consideration for human rights. And the IOC already has the powers to enforce this mandate through the Host City Contract, whether by withholding money from the Host City, or at the most extreme end, by removing the Games altogether. The IOC has also arguably set a precedent of withholding its support for a country to host future sporting events as a result of the Russian doping scandal, and it could do the same for Olympic host cities that engage in practices that violate human rights in the name of the Games. Of course, this is ultimately up to the IOC itself, barring pressure from states or sponsors.

The Olympic Games were never going to fix Brazil’s or Rio’s problems. Many of Rio’s problems, including Zika, ongoing sanitation issues, corruption, and political and economic instability, have little to no connection to the Games, and were certainly not caused by the Games. In that vein, it is naïve to believe that the Games could be anything more than a temporary papering-over of the deep divisions in Brazilian society (for more on this point, I suggest reading Dave Zirin’s book, Brazil’s Dance with the Devil). What the Olympic Games can do is serve as an example of how to carry out a socially-sustainable project in an emerging market economy. This applies not only to the displacement of persons, but also to the treatment of those who work on construction projects related to the Games (as opposed to the forced labour used in Beijing and Sochi), the environmental sustainability of the Games, and governmental policies and procedures that enhance accountability. While the IOC has made tentative steps to address these issues, as I have addressed before in this space, it is insufficient. The IOC cannot solve all the world’s ills, but it can at least ensure that the Games, carried out under its name, live up to its own standards.  The Rio Olympic Games could have served as an example of how to carry out a socially-sustainable project in an emerging market economy.

[1] Although the Paralympics will arrive on 7 September, and while London 2012 did an excellent job of promoting those Games it remains to be seen if Rio will follow suit.