Shortly after his election as IOC President, Thomas Bach announced his intention to initiate an introspective reflection and reform cycle dubbed (probably a reference to former German Chancellor Gerhard Schröder’s publicly praised Agenda 2010) the Olympic Agenda 2020. The showdown of a year of intense brainstorming is to take place in the beginning of December 2014 during an IOC extraordinary session, in which fundamental reforms are expected.
 

Graph 1: The Olympic Agenda’s Timeline

The aims of the Olympic Agenda: Cheaper, Simpler, “Hotter”
The Olympic Agenda 2020 is aimed at securing the short- and long-term success of the Olympic Games. To this end, six main themes, linked to five “clusters of ideas”, were outlined in the IOC’s internal preparatory document: the bidding procedure, the sustainability of the games, the uniqueness (differentiation) of the Games, the Olympic programme, the Olympic Games management and the Olympic Games audience.

The bidding procedure is currently very much under the spotlights, due to the serial withdrawal of cities from their candidacy for the 2022 Winter Olympics. The Olympic Agenda 2020 is first and foremost an exercise designed to respond to this désamour; a process aimed at enhancing the attractiveness of the Games to organizers as well as consumers. Therefore, the IOC foresees an in depth reform of the bidding, making it cheaper and easier for an interested city to candidate.

Moreover, the IOC advocates sustainable Games. By sustainability it means prioritizing the economic viability of the Games. Only in a subsidiary fashion does it entail a concern for their social impact and environmental footprint. Such sustainable Games would be a radical change compared to the latest Sochi Games, which were both very expensive and very environmentally destructive. On paper, this is a noble objective to pursue, but the lack of concrete proposals advanced so far does not bode well for its implementation.

Finally, the IOC is very much concerned with the “hotness” of the Games or, in other words, their attractiveness to consumers and athletes. Thus, it suggests a number of changes to the Olympic Programme, to the relationship of the IOC with other Sports Governing Bodies, to the management structure in the organization of the Olympic Games and to the way it targets its audience (opening up to new markets geographically and technically). As one can see, the IOC had a specific plan in mind when launching the Olympic Agenda 2020 and it focuses very much on the “hotness” of the Games and its economical “sustainability” rather than on its societal responsibility.

A global consultation: For what?
The Olympic Agenda 2020 boasts its responsiveness and openness to the public, embodied in a broad public consultation concluded on 15 April 2014. Thus, the goals and themes suggested by the IOC were, in theory at least, to be complemented and enriched by the opinions raised by participants to the public consultation. Sadly, the contributions to the consultation have not been made publicly available, yet. Only the contributions published on-line by their authors are freely accessible to public scrutiny, this is a regrettable lack of transparency undermining the essence of such a participative endeavour.

From the contributions publicly available one can draw a picture of the demands posed to the IOC in the framework of the consultation and the expectations of the public in this regard. Human Rights Watch, Swedwatch, the Norwegian Olympic Committee, the Swedish Trade Union, and the Gay Games Federation have all submitted substantial contributions advocating  an enhanced protection of fundamental rights during the Olympics. To this end, they suggest for example to impose minimum labour standards at the Olympic building sites, fundamental rights criteria for selecting the host city and an environmentally sustainable management of the Olympic Games. But, is someone listening?

Working Groups: Behind closed doors
Last week, the IOC released the composition of its 14 Working Groups (WGs), tasked with the formulation of theme-specific recommendations. Hence, these WGs will play a decisive role in the substantial outcome of the whole process. Indeed, the detailed recommendations provided will later be compiled and submitted to the IOC session, the body responsible for amending the Olympic Charter and deciding on the IOC’s fundamental political orientations. The WGs include IOC members and external experts. The themes attached to the WG are: Bidding Procedure (WG1), Sustainability and Legacy (WG2), Differentiation of the Olympic Games (WG3), Procedure for the Composition of the Olympic Games (WG4), Olympic Games Management (WG5), Protecting Clean Athletes (WG6), Olympic TV Channel (WG7), Olympism in action including Youth Strategy (WG8), Youth Olympic Games (WG9), Culture Policy (WG10), Good Governance and Autonomy (WG11), Ethics (WG12), Strategic review of Sponsorship, Licensing and Merchandising (WG13), IOC Membership (WG14).

As one can easily judge, the themes covered by these groups are mostly in line with the direction defined a priori by the IOC for the Olympic Agenda 2020. There is little sign of a reflection centered on the role and responsibility of the IOC concerning the enforcement of fundamental rights and standards at the Olympic Games. Furthermore, the scope of competences of each WG is not defined rigorously; thereby, leaving substantial room for interpretation of the scope of remits covering for example fields as broad as ethics. Surely, independent experts like Hugette Labelle (Director of Transparency International) and Leonard McCarthy (Integrity vice-president of the World Bank) are not suspicious of collusion with the IOC, but will they be enough to tilt the balance in favour of the societal concerns expressed? This cherry picking of external personalities supposed to ensure the independence and good faith of the whole process cannot compensate for its procedural deficiencies. In light of the secrecy and vagueness surrounding the WGs agenda, competences and meetings, there is little hope for a responsive reform process to unfold.

Conclusion: Plus ça change, moins ça change?
The IOC is at an institutional crossroad. The Olympic Games are being overtly and loudly contested. Citizens are protesting against their organization, as they have (definitely?) lost their mythical aura and turned into a commercial fair obsessed by its financial returns. Is this state of play going to change with the new Olympic Agenda 2020? It is rather unlikely, but anybody keen on defending the Olympic Games as a unique cosmopolitan and ludic encounter must speak now or forever hold his peace. Indeed, the outcome of the process under way will most likely structure the (political, social, economic) orientations followed by the Olympic Games in the years to come. An intensification of the hunt for economic returns by the IOC would estrange it even more from its societal base and surely intensify the decline of what has been the most successful global happening ever conceived. Public scrutiny and societal irritation are more necessary than ever if the change brought forward by the Olympic Agenda 2020 is to mean real change.

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.