The Olympic Games are a universal moment of celebration of sporting excellence. But, attention is also quickly drawn to their dark side, such as environmental issues, human rights breaches and poor living conditions of people living near the Olympic sites. In comparison, however, little commentary space is devoted to the views of athletes, the people making the Olympics. This article tries to remediate this, by focussing on Rule 50 of the Olympic Charter which prevents athletes from freely expressing their (political) thoughts.  

Rule 50 of the Olympic Charter on advertising, demonstrations and propaganda states in paragraph 3 that: ‘No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’. This rule is supplemented by Bye-law to Rule 50 paragraph 1, which foresees that: ‘No form of publicity or propaganda, commercial or otherwise, may appear on persons, on sportswear, accessories or, more generally, on any article of clothing or equipment whatsoever worn or used by the athletes or other participants in the Olympic Games, except for the identification (…) of the manufacturer of the article or equipment concerned, provided that such identification shall not be marked conspicuously for advertising purposes. Any violation of the provisions of the present clause may result in disqualification or withdrawal of the accreditation of the person concerned. The decisions of the IOC Executive Board regarding this matter shall be final’.[1] 

According to the International Olympic Committee (IOC), which is responsible for the enforcement of the Olympic Charter, this rule warrants the spirit of the Olympic Games – i.e. promoting unity in diversity by bringing together a diverse range of competitors and spectators from all over the world –, the protection of the athletes and their ability to compete free from external distractions.[2]  

Although the underlying reasoning appears to be a very noble pursuit, questions might arise as to whether these goals can be reached when it is not clear, at least for an outsider and perhaps even for athletes, which situations and behaviours fall under the scope of political statement or propaganda and which not. In what way does the statement made by American sprinters Tommie Smith and John Carlos who, during the Olympic Summer Games of 1968 in Mexico City, went on the medal stand without shoes and with beads while hanging their heads and raising their fists when the national anthem set in for instance differ from the rainbow glove worn by Dutch snowboarder Cheryl Maas during the Games in Sochi? Both cases concern athletes making a statement as part of a broader political debate: Smith and Carlos wanted to express their sympathy for the struggle against racial segregation in the US and abroad, whereas Cheryl Maas, one of the openly gay athletes, showed her disregard for Russian’s anti-gay law, a controversial issue at the Sochi Olympic Games. Surprisingly, both incidents were dealt with differently by the IOC: where Smith and Carlos were thrown off the team and sent home, the IOC allowed Cheryl Maas to make her point without being penalised, as was illustrated by the fact that she was able to compete in another event later that week. 

The IOC, in general, does not elaborate further as to the reasoning used when ruling on such cases and confines itself by stating that each case is dealt with individually depending on the specific facts.[3]  Surely, several reasons can be found why both cases are, and perhaps even have to be, treated differently – both incidents took place in different times; Tommie Smith and John Carlos were staying on the medal stand when they made their statement, whereas Cheryl Maas made hers in the qualifying rounds in front of a single camera; Tommie Smith and John Carlos criticised their own country (USA) at the Olympic Games held in another country (Mexico), whereas Cheryl Maas criticised the country organising the Games (Russia); Tommie Smith and John Carlos didn’t feel sorry for the statement made, whereas Cheryl Maas stated afterwards that she didn’t have the intention to make a statement. However, one may question whether such a policy based on a case-by-case approach ensures unity and legal certainty. In the current state of affairs, it is not possible to provide general legal guidance on how a case will be tackled by the IOC. The Olympic Games should be based on transparent and equal rules for everybody, a fundamental requirement of both sport and the law. Hence, it is high-time for the IOC to provide detailed rules and guidance on the policy applying to political statements made by athletes.

[1] Olympic Charter, in force as from 9 September 2013, accessible via http://www.olympic.org/documents/ 

  olympic_charter_en.pdf

[2] http://isuprod.blob.core.windows.net/media/128853/ioc-guidellines-rule-503.pdf

[3] Rule 50 of the Olympic Charter: what you need to know as an athlete, accessible via http://assets.olympic.org/ 

   fortherecord/i8/info.html

2015 was a good year for international sports law. It started early in January with the Pechstein ruling, THE defining sports law case of the year (and probably in years to come) and ended in an apotheosis with the decisions rendered by the FIFA Ethics Committee against Blatter and Platini. This blog will walk you through the important sports law developments of the year and make sure that you did not miss any.

The Court of Arbitration for Sport challenged by German Courts 

The more discrete SV Wilhelmshaven ruling came first. It was not even decided in 2015, as the ruling was handed out on 30 December 2014. Yet, unless you are a sports law freak, you will not have taken notice of this case before 2015 (and our blog). It is not as well known as the Pechstein ruling, but it is challenging the whole private enforcement system put in place by FIFA (and similar systems existing in other SGBs). Indeed, the ruling foresees that before enforcing a sanction rendered by FIFA, the national (or in that case regional) federation must verify that the award underlying the sanction is compatible with EU law. The decision has been appealed to the Bundesgerichtshof (BGH) and a final ruling is expected in 2016.

Later on, in January, the Oberlandesgericht München dropped its legal bomb in the Pechstein case. The court refused to recognize the CAS award sanctioning Claudia Pechstein with a doping ban, as it was deemed contrary to German antitrust rules. The reasoning used in the ruling was indirectly challenging the independence of the CAS and, if confirmed by the BGH, will trigger a necessary reform of the functioning and institutional structure of the CAS. Paradoxically, this is a giant step forward for international sports law and the CAS. The court acknowledges the need for CAS arbitration in global sport. However, justice must be delivered in a fair fashion and the legitimacy of the CAS (which relies on its independence from the Sports Governing Bodies) must be ensured (see our long article on the case here).

We will see how the BGH will deal with these cases in 2016. In any event, they constitute an important warning shot for the CAS. In short, the CAS needs to take EU law and itself seriously. If it truly addresses these challenges, it will come out way stronger.

The new World Anti-Doping Code and the Russian Doping Scandal

On the doping front, 2015 is the year in which the new World Anti-Doping Code (WADC) came into force (see our Blog Symposium). The Code introduces substantial changes in the way the anti-doping fight is led and modifies the sanction regime applicable in case of an adverse analytical finding. It is too early to predict with certainty its effects on doping prevalence in international sports. For international sports lawyers, however, it is in any event a fundamental change to the rules applicable to anti-doping disputes, which they need to get closely acquainted with.

The new World Anti-Doping Code was largely overshadowed by the massive doping scandal involving Russian sports, which was unleashed by an ARD documentary (first released in 2014) and revived by the crushing report of the Independent Commission mandated by the World Anti-Doping Agency to investigate the matter. This scandal has shaken the legitimacy of both the anti-doping system and the International Association of Athletics Federations (IAAF). It has highlighted the systematic shortcomings of the anti-doping institutions in Russia, and, the weakness of the control exercised on these institutions at a transnational level, be it by IAAF or WADA.

In 2015 again, doping proved to be a scourge intimately linked with international sports. The confidence and the trust of the public, and of clean athletes, in fair sports competitions is anew put to the test. WADA, which was created in the wake of another massive doping scandal in the nineties, has shown its limits. In practice, the decentralization of the enforcement of the WADC empowers local actors, who are very difficult to control for WADA. Some decide to crackdown on Doping with criminal sanctions (see the new German law adopted in December 2015), others prefer to collaborate with their national athletes to improve their performances. The recent proposals at the IOC level aiming at shifting the testing to WADA can be perceived as a preliminary response to this problem. Yet, doing so would entail huge practical difficulties and financial costs.

EU law and sport: 20 years of Bosman and beyond

2015 was also the year in which the twentieth anniversary of Bosman was commemorated through multiple conferences and other sports law events. The ASSER International Sports Law Centre edited a special edition of the Maastricht Journal of European and Comparative Law and a book celebrating the legacy of the ruling is forthcoming with the publisher Springer. The ruling did not have the dramatic effects predicted at the time of the decision, since football is still alive and kicking. Surely, it has given way to new challenges and sharply accelerated the transnationalization of football (and sport in general). A key legacy of Bosman is that this transnationalization, which goes hand in hand with the commercialization of sport, cannot side-line an essential category of stakeholders: the athletes.

It is with this spirit in mind, and a little push of the ASSER International Sports Law Centre, that the European Commission decided to open an investigation into the rules of the International Skating Union (ISU) barring, under the threat of a life ban, speed skaters (and any other affiliate) from joining speed skating competitions which are not condoned by the ISU. Though the case is rather low profile outside of the Netherlands, this is an important step forward for the EU Commission, as it had not opened an EU competition law investigation in sporting matters in almost 15 years. Many other competition law complaints (e.g. TPO or Formula 1) involving sport are currently pending in front of the EU Commission, but it is still to decide whether it will open a formal investigation. 2015 is also the year in which we have desperately expected the release of the EU State aid decisions regarding football clubs, and amongst them Real Madrid, but in the end this will be a matter for 2016.

FIFA and the chaotic end of the Blatter reign

FIFA is not the only SGB to have put an abrupt end to the (very) long reign of its great leader (think of the messy downfall of Diack at the IAAF). Yet, when talking about FIFA and football, the resonance of a governance crisis goes well beyond any other. It is truly a global problem, discussed in nearly all news outlets. This illustrates very much how a Swiss association became a global public good, for which an Indian, Brazilian, American or European cares as much as a Swiss, who is in traditional legal terms the only one able to influence FIFA’s structure through legislation. The global outrage triggered by the progressive release by the US authorities of information documenting the corrupt behaviour of FIFA executives has led to two immediate consequences: a change of the guard and a first reform of the institution.

There are now very few FIFA Executive Committee members left who were present in 2010 for the election of Qatar as host city for the 2022 World Cup. The long-time key figures of FIFA, Blatter, Platini and Valcke, are unlikely to make a comeback any time soon. And, the upcoming February election of the new FIFA president is more uncertain than ever with five candidates remaining. Simultaneously, FIFA has announced some governance reforms, which aim at enhancing the transparency of its operation and the legitimacy of its decision-making. We are living through a marvellous time of glasnost and perestroika at FIFA. The final destination of this transformative process remains unknown. There are still some major hurdles to overcome (starting with the one association/one vote system at the FIFA congress) before FIFA is truly able to fulfil its mission in a transparent, accountable and legitimate manner. We hope it will be for 2016!

The ASSER International Sports Law Blog in 2015

Finally, a few words on our blog in 2015. In one year we have published 60 posts, our most-read-blog concerned the Pechstein ruling that was read 3054 times.

Our peak day was reached on 4 September with 621 page views (thanks to a great post on the Essendon case by @jrvkfootball).

Our readers are based all around the world, but the majority is based in the EU and the US.

We hope to be able to keep you interested and busy in 2016 and we wish you a great year!

The ASSER International Sports Law Blog Team