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The New Olympic Host City Contract: Human Rights à la carte? by Ryan Gauthier, PhD Researcher (Erasmus University Rotterdam)

Three weeks ago, I gave a talk for a group of visiting researchers at Harvard Law School on the accountability of the IOC for human rights abuses caused by hosting Olympic Games. On the day of that talk, Human Rights Watch announced that the International Olympic Committee (“IOC”) would insert new language into the Host City Contract presumably for the 2022 Olympic Games onwards. The new language apparently requires the parties to the contract to:

“take all necessary measures to ensure that development projects necessary for the organization of the Games comply with local, regional, and national legislation, and international agreements and protocols, applicable in the host country with regard to planning, construction, protection of the environment, health, safety, and labour laws.”

This language would apply to the National Olympic Committee, the Organizing Committee for the Olympic Games, and the host city.

This language has been hailed by Human Rights Watch as a strong first step, and for good reason. It seems that the IOC is listening to complaints about the construction of the Olympic Games. The IOC has said before that it would address the violations of labour rights associated with the Olympic Games, in the XIII Olympic Congress, and its Recommendations, made in 2009:

The IOC will intervene at the OCOG level in the event of serious abuse, such as:

·       Mistreatment of people displaced due to Olympic venue construction sites;

·       Abuse of migrant workers at Olympic venue construction sites;

·       Child labour;

·       Improper restrictions on the media’s freedom to cover the Games, including cultural aspects.

The IOC will establish a system for correctly identifying and dealing with “legitimate complaints” from official sources.

The IOC will not intervene in non-sport human rights issues.

The leverage that the IOC has towards the Organising Commitres for the Olympic Games (OCOGs) should be determined. This might lead to amendments to the Host City Contract and Documentation for Bid Cities.

However, the experience of Sochi with its displacement of persons, and abuse of migrant workers at Olympic venue construction sites appears to have put lie to that promise. Therefore, it would seem that the prospective contractual language would be a strong first step. But, looking closer at the language, there are some causes for concern.

 

Old Wine in New Bottles?

First, it should be noted that this language is not novel. The IOC has similar language in its Candidature Procedure, under “Environment”:

Provide (a) guarantee(s) from the competent authorities stating that all construction work necessary for the organisation of the Olympic Games will comply with:

·       Local, regional and national environmental regulations and acts

·       International agreements and protocols regarding planning, construction and protection of the environment (2020 Candidature Procedure, Q 5.4)

That the new language in the host city contract is under the heading of “Sustainable Human and Environmental Development” should therefore not be surprising. However, the environmental requirements presented above were in the host selection process. This new language is contractual language, and should be evaluated as such (one could make the same argument re the host selection process documents – but, just like the IOC…small steps).

 

A “Toothless” Paper Tiger

Overall, however, the clause in the Host City Contract appears to fall short in four key ways:

1)    Weak standard: The standard used in the contract is compliance with national laws and international agreements/protocols. This standard has been problematic, as it can be a moving target. National laws can be changed. Consider the next two states hosting the FIFA World Cup. Russia has passed Law 108-FZ in advance of the 2018 FIFA World Cup. The law affects the rights of migrant workers brought in to work on the World Cup facilities. Migrant workers no longer need to be registered with local authorities. Restrictions on the length of the working day are removed, and overtime pay is replaced with time off in lieu. Law 108-FZ is a national law, and presumably the parties would comply with it. Although a question arises if the national law conflicts with international agreements…which prevails? The same can be said for another FIFA World Cup host – Qatar – that has also bid to host the 2016 and 2020 Summer Olympic Games. Qatar’s kafala system is certainly national legislation. But compliance with said legislation would not improve human rights.

2)    Vagueness: Vagueness in a contract will lead to conflict. In this case, what is “compliance”, or more to the point, what is “non-compliance”? Who determines non-compliance? Is non-compliance simply a complaint? Or an adverse court ruling? Who makes the determination of non-compliance? Is it in the IOC’s sole discretion? Or an agreement of the parties? Presuming this is meant to be an enforceable contract, a lack of precise terminology is problematic. Also, given the language of “take all necessary measures”, does this require a host to take all measures, regardless of the cost? Or to the point of undue hardship? This seems to be a rather high bar, but is it a reasonable one?

3)    Remedies/Enforcement: While in an ideal world, everyone will adhere to an agreement, breaches do occur. In the 2014 Host City Contract, the one particular remedy for breach is that the IOC can withdraw the right to host the Games. However, given the complexity of removing the Games to another city (which to my knowledge was only done in 1976 – with a move from Denver to Innsbruck), this is likely to remain a “nuclear option”. What other remedies might there be to make a sanction a reasonable deterrent? In addition, if there are disputes over whether or not there is a breach of this clause, the Court of Arbitration for Sport has jurisdiction. It may deny jurisdiction, and if it does so, then the proceedings move to the Swiss courts. Would CAS or the Swiss courts be interested in adjudicating what is essentially human rights litigation in another state? Would a Swiss court truly say, for instance, “Russia has not complied with international human rights standards”? It does not seem likely.

4)    Absence of Dialogue: The problem with inserting such language into a contract is that it creates a “take-it-or-leave-it” environment, without specifying what the “take-it-or-leave-it” is. Using the host selection process to tease out human rights concerns enables the IOC to ask questions of the potential hosts about best practices, concerns, or processes that could be put into place to address future problems. The answers in the host selection process would then create a more robust standard to hold a host to, giving the language in the contract more weight. Absent this, the language becomes window-dressing. Also, in the event of a host breaching this provision, will there be dialogue? Will that dialogue be public?

 

Given the above, the contractual language falls far short, if it is to be taken as an actual contract. However, it is a strong signal that the IOC seems willing to address human rights issues caused by the Olympic Games. If this is so, then the language is a meaningful first step. Other steps, however, are required. For instance (and here is the shameless plug), my PhD research examines the use of the host selection process to tackle human rights issues in the host countries, amongst other proposals. For now, those expecting to use the contract as a legal mechanism to ensure that future hosts respect human rights, it might be best not to hold your breath.

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – June 2017. By Tomáš Grell

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

International and European Sports Law – Monthly Report – June 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.

 

The Headlines

 
ISLJ Annual Conference on International Sports Law

On 26 and 27 October, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year’s edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  •    Miguel Maduro, former Advocate General at the European Court of Justice and former head of FIFA’s Governance Committee
  •    Michael Beloff QC, English barrister known as one of the ‘Godfathers’ of sports law
  •    Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport
  •    Richard McLaren, CAS arbitrator, sports law scholar and former head of the World Anti-Doping Agency’s (WADA) investigation into the Russian doping scandal

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a ‘first come, first served’ basis.]


The CAS award in Atlético de Madrid v. FIFA

On 1 June 2017, the CAS communicated that it had rendered an award in the arbitration procedure between the Spanish club Atlético de Madrid and FIFA regarding the transfer of minor football players. The CAS Panel confirmed the transfer ban imposed on Atlético de Madrid by the FIFA Appeal Committee in its decision of 8 April 2016. This means that, unlike Real Madrid CF whose ban was reduced by the CAS from two to one entire transfer period, Atlético de Madrid remains banned from registering players both nationally and internationally for two complete and consecutive transfer periods. However, the CAS Panel found that not all of the alleged violations of the FIFA regulations concerning the registration of minor football players could be upheld. As a result, Atlético de Madrid is now obliged to pay CHF 550,000 instead of the original fine amounting to CHF 900,000. The award is not yet available.

 

The CAS award in ACF Fiorentina v. Mohamed Salah and Chelsea FC

This three-party dispute emerged from a loan agreement concluded between Chelsea FC and ACF Fiorentina in early 2015. Accordingly, the Egyptian international Mohamed Salah was loaned from Chelsea FC to ACF Fiorentina for the period between 2 February 2015 and 30 June 2015, with the option to extend the loan period for twelve more months from 1 July 2015 to 30 June 2016, if certain conditions were fulfilled. In July 2015, the player decided to remain at Chelsea FC while the representatives of the Italian club demanded his return to Florence. In August 2015, Salah joined A.S. Roma on a season-long loan from Chelsea FC.

Soon after the commencement of the 2015/2016 season, ACF Fiorentina lodged a complaint with FIFA, alleging that the player breached the loan agreement without just cause, and that Chelsea FC induced him to do so. The Italian club requested a compensation of EUR 32 million and sporting sanctions against both Chelsea FC and Salah. On 26 May 2016, the FIFA Dispute Resolution Chamber rejected the complaint (‘FIFA DRC Decision’). Disappointed with this decision, ACF Fiorentina filed an appeal with the CAS on 11 October 2016.

In the shadow of Salah’s recent transfer from A.S. Roma to Liverpool FC, the CAS announced on 30 June 2017 that it had dismissed ACF Fiorentina’s appeal and confirmed the FIFA DRC Decision. The award is not yet available.

 

FIFA’s Human Rights Policy

The amount of work done by international sports federations to strengthen their human rights compliance increases every month. In June 2017, the world’s governing body of football published FIFA’s Human Rights Policy, a document clarifying FIFA’s approach to the implementation of its human rights commitment in accordance with the United Nations Guiding Principles on Business and Human Rights. Simultaneously, FIFA also published its Activity Update on Human Rights mapping the most significant steps taken by the world’s governing body of football over the past twelve months to mitigate human rights risks with which it is repeatedly involved.

 

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