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.

About three years ago, the Fédération Internationale de Football Association (FIFA) adopted a new version of its Statutes, including a statutory commitment to respect internationally recognized human rights. Since then, FIFA undertook a human rights journey that has been praised by various stakeholders in the sports and human rights field. In early June, the FIFA Congress is scheduled to take a decision that could potentially undo all positive efforts taken thus far.

FIFA already decided in January 2017 to increase the number of teams participating in the 2026 World Cup from 32 to 48. Shortly after, discussions began on the possibility to also expand the number of teams for the 2022 World Cup hosted in Qatar. Subsequently, FIFA conducted a feasibility study, which revealed that the expansion would be feasible but require a number of matches to be hosted in neighbouring countries, explicitly mentioning Bahrain, Kuwait, Oman, Saudi Arabia and the United Arab Emirates (UAE). One does not have to be a human rights expert to be highly alarmed by this list of potential co-hosting countries. Nevertheless, the FIFA Council approved of the possibility to expand in March 2019, paving the way for the FIFA Congress to take a decision on the matter. Obviously, the advancement of the expansion decision raises serious doubts over the sincerity of FIFA’s reforms and human rights commitments.

The Human Rights Climate in Potential Co-hosts

The list of human rights issues commonly linked to the potential co-hosts is long.[i] All of them uphold severe restrictions on the freedom of expression and regularly silence activists. Women face discrimination under the law of a number of these countries, and the rights of migrant workers are not adequately protected, leading to abusive situations and forced labour.[ii] Arbitrary arrests and unfair trials and sentencing are widespread in Oman.[iii] Bahrain has a habit of detaining, torturing and deporting human rights defenders and Kuwait refuses to recognize the 100,000 Bidun living in the country as Kuwaiti citizens, leaving them stateless. The latest add-on to Saudi Arabia’s appalling human rights track record is the mass execution of 37 individuals, which proceeded against vociferous criticism from other states and human rights organizations about the lack of due process and allegations of torture having been used to obtain confessions of those convicted and executed. Furthermore, even the highest football official cannot have missed the allegations on Saudi officials being involved in the murder of the journalist Jamal Khashoggi in the Saudi consulate in Turkey in October 2018. Finally, the active involvement of and alleged attacks on civilians launched by Saudi Arabia and the UAE in the Yemen war can also not be ignored.

In addition to these structural human rights issues spread in the region, a number of these countries have been involved in very recent football-related human rights cases. In January 2019, a British football fan, Ali Ahmad, has been detained for three weeks and suffered torture by UAE security officials for wearing a Qatari football jersey to an Asian Cup match between Qatar and Iraq. In February 2019, Hakeem al-Araibi, a football player from Bahrain, now living as refugee in Australia, has been released from Thai prison after his arrest in November 2018. The Thai authorities acted upon an arrest warrant issued by Bahrain, where Hakeem had been convicted in absentia to 10 years in prison for an incident dating back to November 2012. The official allegations were vandalism of a police station, but there is clear evidence that discharges Hakeem of these allegations. Most likely, he became a target of Bahraini government and football officials that identified and persecuted Bahraini football players that were involved in anti-government protests during the Arab Spring in 2012.

The Mismatch with FIFA’s Standing Human Rights Commitments

This brief overview presents just a fraction of the extremely negative human rights track record of the countries that FIFA is considering as potential co-hosts for the 2022 World Cup. In case one of these countries will indeed host a World Cup match, FIFA risks to throw away all efforts that it carefully put into building up its human rights profile in the past three years. After the inclusion of human rights into its Statutes, FIFA created a Human Rights Advisory Board in March 2017, adopted a human rights policy in May 2017, and launched a complaint mechanism for human rights defenders and media representatives in the run-up to the 2018 World Cup in Russia.

Most importantly, in October 2017 FIFA integrated human rights requirements in its bidding requirements for the World Cup following John Ruggie’s recommendation to “set explicit human rights requirements of Local Organising Committees in bidding documents for tournaments and provide guidance on them”.[iv] The revised bidding requirements expect bidders to conduct all bidding and hosting activities in line with internationally recognized human rights.[v] Furthermore, bidders are required to submit a public commitment to respect human rights and a human rights strategy, together with a report on stakeholder engagement in developing the policy.[vi] The new requirements applied for the first time to the bidding process for the 2026 World Cup and while the 2022 World Cup had been awarded before, the new standard forms an integral part of FIFA’s human rights system by now and therefore should be considered in the recent expansion plans.

Interestingly, the feasibility study on the expansion of the 2022 World Cup mentions human rights at several points: in the context of requirements regarding stadiums (p. 32 & 46), as part of requirements for additional infrastructure and sites (p. 46), and as one of the necessary government guarantees to be submitted to FIFA (p.68). Receiving such guarantees from the respective government might not pose a problem. Instead, the real issue at stake is whether FIFA truly cares about its human rights commitments when considering if these guarantees turn out to be nothing but empty words on a piece of paper? FIFA risks failing its commitments by letting any of the proposed countries co-host the World Cup without having done a proper human rights risk assessment.

Despite this risk, the expansion seems to be more likely to happen than not. FIFA President Gianni Infantino appears to be convinced that the expansion can contribute to solving the diplomatic crisis that is ongoing in the region and stated on record that a preliminary survey showed that 90% of the member associations are in favour of the expansion. Indeed, the decision lies in their hands. They make up the members of the FIFA Congress, FIFA’s supreme body for decision-making, and each member association has one vote. While a number of associations and confederations already publicly announced their support of the expansion, there is still hope that other member associations or confederations remind FIFA of its human rights responsibilities and commitments by voting against it.

[i] For an overview of human rights issues linked to these countries, see Human Rights Watch (2019), “World Report 2018”. 

[ii] See for example Human Rights Committee CCPR/C/BHR/CO/1 (2018), “Concluding observations on the initial report of Bahrain”.

[iii] Human Rights Council A/HRC/29/25/Add.1 (2015), “Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai – Mission to Oman”, para 20 ff.

[iv] John G. Ruggie (2017), “’For the Game. For the World’ FIFA & Human Rights”, p. 32.

[v] FIFA (2017), “FIFA REGULATIONS for the selection of the venue for the final competition of the 2026 FIFA World Cup™”, Regulation 8.1 (ii).

[vi] Ibid., Regulation 8.2.

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.