Editor's note: Prof. Dr. Ekşi is a full-time lecturer and chair of
Department of Private International Law at Özyeğin University Faculty of Law.
Prof. Ekşi is the founder and also editor in chief of the Istanbul Journal
of Sports Law which has been in publication since 2019.
The provisions
prohibiting propaganda and political demonstrations are enshrined in the statutes
and regulations of international and national federations. For example,
International Football Association Board (‘IFAB’) Laws of the Game 2020/2021
states that players must not reveal undergarments that display any political,
religious, personal slogans, statements or images, or advertising other than
the manufacturer’s logo.[2]
As with any offence, the player and/or the team will be sanctioned by the
competition organiser, national football association or by FIFA. On the one
hand, freedom of expression is listed among the rights of athletes in Paragraph
11 of the IOC Athletes’ Rights and Responsibilities Declaration[3], on the other hand, Rule
50(2) of the Olympic Charter
restricts demonstrations or political, religious or racial propaganda, which
may adversely affect freedom of expression. The propaganda ban was first introduced by the 1967
Olympic Charter.[4] This
ban has been retained in later versions with minor modifications. Under the
title of “propaganda advertising, demonstration”, Rule 50(2) of the current
version of the Olympic Charter[5]
provides that “no kind of demonstration
or political, religious or racial propaganda is permitted in any Olympic sites,
venues or other areas”. The aim of Rule 50(2) of the Olympic
Charter in prohibiting political statements is to maintain the neutrality of
sport.[6] Rule 50(2) is only
applicable in Olympic venues, namely on the field of play, in the Olympic
Village, during Olympic medal ceremonies or during the opening, closing and
other official ceremonies.[7] Displaying any political
messaging, including signs or armbands, gestures of a political nature, like a
hand gesture or kneeling, and refusal to follow the ceremonies protocol are some examples of what would
constitute a protest, as opposed to expressing views non-exhaustingly indicated
in Rule 50
Guidelines Developed by
the IOC Athletes’ Commission.[8]
A
disciplinary sanction can be applied against an athlete who has breached Rule 50(2)
of the Olympic Charter. This sanction can be reviewed by the ad hoc division of the Court of Arbitration for Sport (‘CAS’)
established for the Olympic Games.[9] An arbitral award of CAS
can be challenged before the Swiss Federal Court on the grounds listed in
Article 190 of the Swiss Private International Law including public policy.[10] Since freedom of
expression is among the fundamental human rights guaranteed by Article 10 of
the European Convention on Human Rights, the Swiss Federal Tribunal may rule
that a CAS arbitral award is incompatible with public policy. The limitations set out in the statutes and regulations of the national
and international sports federations pertaining to the freedom of expression
are aimed to protect the neutrality of sport and separate it from political,
religious or any other type of interference; however, one cannot exclude
potential challenges to be filed against Switzerland before the ECtHR. As in
the Pechstein and Mutu cases, the sports community,
including CAS, anxiously awaited what the ECtHR would decide. The judgements of
the ECtHR have been taken into consideration and respect for human rights has
been integrated in the statutes of some SGBs, including the IOC Charter.
Although the IOC is established as an association under the Swiss
Association Law, the rules of its Charter may adversely affect the enjoyment of
certain human rights. Freedom
of expression is enshrined not only in Article 10 of the ECHR but also in other
international human rights legislative instruments, including Article 19 of the Universal Declaration of Human
Rights of 1948, Article 11 of the EU Charter
of Fundamental Rights, Article 17(1) of Council of Europe Convention on Preventing and
Combating Violence against Women and Domestic Violence, Article 19 of
the International Covenant on Civil and Political Rights. Article 10 of the
ECHR covers not only the disclosure of political ideas, but also the freedom to
disclose any literary, commercial and other ideas. The freedom of expression protected
under Article 10 of the ECHR is not limited to words, written or spoken, but it
extends to pictures and images including tv or radio broadcasts, films as well
as electronic information etc.[11]
The right to freedom of expression can be restricted in certain circumstances
provided in the provisions of the human rights instruments. Although these
instruments are hard law for the Member States, statutes and regulations of the
international or national SGBs contain restrictions as to the right to freedom
of expression. International or national SGBs are mostly established as
associations.[12] The
problem so far has arisen as to how national or international sports
federations can restrict the rights and freedoms guaranteed by the national
constitutions and international conventions.
Article
10 of the ECHR can also be applied in the field of sports because athletes can
address a wide public during the competitions and may protest human rights
violations or political events in their own country or elsewhere. Human rights violations
including the right to freedom of expression may also occur in countries where
the Olympic Games are held.[13]
Generally, the IOC and its international federations take the necessary
measures to ensure that athletes do not make political statements during
competition. In fact, in 1967 famous boxer Mohammad Ali refused to fight in Vietnam to protest
racial segregation.[14] During the 1968 Mexico
City Summer Olympics, after winning the gold and the bronze medal in the
200-meter sprint, American athletes Tommie Smith and John Carlos stepped onto the
podium barefoot, shared a pair of black gloves and raised their fists in the
air when the national anthem played to protest against black poverty and
lynching.[15]
The IOC reacted swiftly and harshly to this 1968 black power salute,
immediately suspending the athletes.[16] The history of sports has
recorded various examples of athletes who were sanctioned or ostracized because
they had exercised their freedom of expression. Colin Kaepernick and Eric Reid kneeled
or sat on the bench while the national anthem was played as a protest against
racial discrimination and police brutality against people of colour in the
United States.[17]
Both players were not contracted in the NFL in the subsequent season.[18] Czech national gymnast
Vera Caslayska’s career ended as she protested against Soviet hegemony in her
country during a medal ceremony in Mexico in 1968.[19] John Carlos and
Tommie Smith were suspended immediately from the United States Olympic Team as
a result of the black power salute. FIFA
fined the England Football Association because its members displayed poppies, a
symbol of National Armistice Day, during the World Cup qualifier against
Scotland. Likewise, Scottish and Irish clubs were fined for flying the
Palestinian flag in stadiums.[20] “During the Sochi
Games, the IOC even reprimanded athletes for placing small stickers on their
helmets in memory of deceased freestyle skier Sarah Burke, calling the gesture
political”.[21]
Sometimes an athlete makes futile efforts to obtain permission to
protest the situation in their countries. The request by Ukrainian athletes to wear a
black headband to remember those who died during the political demonstrations
in Kiev was rejected by the IOC as political propaganda. However, protests or
demonstrations by athletes may not always contain political content. For
example, Cheryl Maas, a Dutch and gay skier, wanted to wear rainbow gloves to
protest Russia’s anti-gay legislation, but he was not allowed.
As there is no judgment of the ECtHR to confirm whether or not Rule
50(2) of the Olympic Charter complies with Article 10 of the ECHR, various arguments
have been put forward by academics. Dhonchak thinks the rule set out
in Rule 50(2) of the Olympic Charter must be
struck down at the earliest.[22] However, Faut puts
forward two solutions which could increase compliance with
Article 10 of the ECHR. “The first one lies in more transparent and less
excessive sanction mechanisms. A second option would be a laxer prohibition on
political statements in the Olympic Charter, covering a smaller range of
incidents”.[23]
Anmol believes that IOC could also re-assess its position and come-up
with fresh guidelines that uphold a balanced political speech before the Tokyo
Olympics 2021.[24]
For example, the IOC could allow the disciplinary body to assess the speech by examining
its content and core intentions in accordance with the Fundamental Principles
of Olympism set out in the Olympic Charter. Shahlaei states that “perhaps
the solution lies somewhere in the middle. To maintain their general political
objectivity, sports organizations could continue to prohibit purely domestic
political gestures, such as flying a banner in support of a preferred
presidential candidate. At the same time, they could allow athletes to express
support for human rights, such as racial equality”.[25]
However, it should be noted that Rule 50 of the Olympic Charter in no
way eliminates freedom of expression. In accordance with the Rule 50 Guidelines
developed by the IOC Athletes’ Commission, outside the Olympic venues athletes
have the opportunity to express their opinions during press conferences and
interviews or at team meetings or on digital or traditional media, or on other
platforms. Any protest or
demonstration outside Olympic venues must obviously comply with local
legislation wherever local law prohibits such actions.[26] Nonetheless, this
discussion will surely continue until the ECtHR will shed light on the application
of Article 10 of the ECHR to Rule 50(2) of the Olympic Charter.
[4] FAUT, 254-255. For
the text of the Olympic Charter of 1967 see http://www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1967-Olympic_Charter.pdf. (accessed
20.4.2021).
[5] Olympic Charter in force as from 17
July 2020 © International Olympic Committee, Lausanne, 2020.
[9] Johan LINDHOLM,
From Carlos to Kaepernick and beyond: Athletes’ Right to Freedom of Expression,
17(2017)1-3 International Sports Law Journal, p. 2.
[11] Frédérique FAUT,
The Prohibition of Political Statements by Athletes and its Consistency with
Article 10 of the European Convention on Human Rights: Speech is Silver,
Silence is Gold?, 14(2014) International Sports Law Journal, p. 257; Monica MACOVEI,
Freedom of Expression Human Rights Handbooks, No. 2 A guide to the
Implementation of Article 10 of the European Convention on Human Rights, 2nd
edition, January 2004, p. 7.
[12] For the criticisms
about the extraordinary autonomy that sports governing bodies enjoy under Swiss
law see Margareta BADDELEY, The Extraordinary Autonomy of Sports Bodies
under Swiss Law: Lesson to be Drawn, 20(2020) International Sports Law Journal,
p. 3-17.
[14] Faraz SHAHLAEI,
When Sports Stand Against Human Rights: Regulating Restrictions on Athlete
Speech in the Global Sports Arena, 38(2017)1 Loyola of Los Angeles
Entertainment Law Review, p.100.
[22] Dhananjay
DHONCHAK, Rule 50 of the Olympic Charter-Protesting
Racial Inequality, 04.09.20: https://opiniojuris.org/2020/09/04/rule-50-of-the-olympic-charter-protesting-racial-inequality
(accessed 17.4.2021).
[24] Jain ANMOL,
Political Speech in Sports: A Case for Non-Prohibition, 2(2020)1 Journal for
Sports Law, Policy and Governance, p. 73.
[26]
Rule 50 Guidelines Developed by the IOC Athletes’ Commission.