Editor's note: Yuri Yagi is a sports lawyer involved in Sports Federations and Japanese Sports Organizations including the Japan Equestrian
Federation (JEF), the International Equestrian Federation (FEI), the Japanese
Olympic Committee (JOC), the Japan Sports Council (JSC) and the All-Japan High School Equestrian Federation.
Japan has held
three Olympic Games since the inception of the modern Olympics;Tokyo Summer
Olympic Games in 1964, Sapporo Winter Olympic Games in 1972, and Nagano Winter
Olympic Games in 1998. Therefore, the Tokyo 2020 Olympic Games (Tokyo 2020) are supposed to
be the fourth to be held in Japan, the second for Tokyo. Tokyo 2020 were
originally scheduled for 24 July 2020 to 9 August 2020. Interestingly, the word
‘postpone’ or ‘postponement’ does not appear in the Host City Contract (HCC).
However, the International
Olympic Committee (IOC), the Tokyo Metropolitan Government (TMG), the Japanese
Olympic Committee (JOC), and the Tokyo Organising Committee of the Olympic and
Paralympic Games (TOCOG) decided on 24 March 2020 that Tokyo 2020 would be
postponed because of the pandemic of COVID-19. Later on, the exact dates were fixed
‘from 23 July 2021 (date of the Opening Ceremony) to 8 August 2021 (date of the
The process of the
decision is stipulated in the ‘ADDENDUM N° 4’ signed by IOC, TMG, JOC and TOCOG.
This paper provides
an overview of the current situation, along with legal and other issues in
Japan that have arisen due to the postponement of Tokyo 2020 due to COVID-19.
The overview is offered from the perspective of a citizen of the host city and
includes a consideration of national polls, the torch relay, vaccination,
training camps, ever increasing costs, and the related provisions in the
Candidature File and the Host City Contract.
The Situation of COVID-19 in Japan
According to the Government, the first COVID-19 case in Japan was
confirmed on 16 January 2020. On 24 March 2020, when the postponement of Tokyo 2020 was decided, the
reported number of new COVID-19 positive cases in Japan was 64 (Japanese
population is around 126 million). As a comparison, reported cases in Japan on 28
May 2021 was 3,706.
National State of Emergency
Since the start of
the pandemic, National states of emergency have been issued three times in
Tokyo, the first time was from 7 April 2020 (the reported number of positive cases on that day in Tokyo was 87) to 25 May 2020 (8 cases), the second time was from 8 January
2021 (2,459 cases) to 21 March 2021 (256 cases), and the third began on 25
April 2021 (635 cases) and is still in effect (539 cases as of 29 May 2021). A national state of emergency is not similar
to the lockdowns issued in several other countries. It is basically the
government’s request that people stay at home. Under National states of
emergency, the Government asked businesses, especially restaurants and bars, to
close earlier than usual or completely.
National Poll as to Olympic Games
According to a
national poll carried out by Japan Broadcasting Corporation (NHK, which is
Japan's only public media organization) and published on 10 March 2020, 14 days prior to the decision of
the postponement, 40% of respondents answered that they believe the Olympics
will be held as scheduled. Conversely, 45% answered that they do not.
survey of 1,300 Japanese residents carried out by NHK and published on 23 July 2020 showed that 35% said that Tokyo
2020 should be postponed further, 31% said that they should be cancelled, and
26% said that they should be held as scheduled.
In the national poll
published by NHK in May 2021, 49% answered Tokyo 2020 should be
cancelled, 23% answered they should be held without spectators, 2% answered
they should be held as usual.
In addition, people
who demanded the cancellation of Tokyo 2020 collected more than 350,000
signatures in an online petition.
The Olympic Flame
was lit in Greece on 12 March 2020 and arrived in Japan on 20 March 2020, just prior
to the decision to postpone. However, most related ceremonies were cancelled or
downsized and there was less excitement among Japanese citizens than originally
The postponed torch
relay started on 26 March 2021 in Fukushima Prefecture, which was severely
damaged by a tsunami following The Great East Japan Earthquake in 2011. The
torch relay is still ongoing and is live streaming every day on the internet. However in many places, the torch
relay has been replaced with stage events instead of running on public roads.
Japanese citizens have been asked to not attend the torch relay or the events.
As a result, the torch relay has turned out to be totally different from what was
Slow Rollout of Vaccine
vaccination started in Japan on 17 February 2021, first for frontline workers,
and at the time of this article (31 May 2021), they are mainly being
administered for elderly people over 65 years old. It is a relatively late
start and a slow rollout compared to other developed countries (for example vaccination
started in December 2020 in the US, the UK, Itally, France, Germaney, and other countries). As of
30 May 2021, only 0.25% of residents in Japan
have been fully vaccinated (twice) and 3.67% have be vaccinated once.
Minister Yoshihide Suga announced that IOC had struck a deal with Pfizer to
provide vaccines for all Tokyo 2020 participants. Accordingly, JOC announced that
about 1,600 athletes and other members of Japan's potential delegation to Tokyo
2020 will be vaccinated from 1 June 2021.
Pre-Event Training Camps and Games-Related
COVID-19 has also
had an effect on Games-related plans such as pre-event
training camps and cultural programs planned by local governments. As of 18
May 2021, training camps and Games-related cultural exchange events have
reportedly been cancelled in many local governments (reported number was 54) because
of the infection risks and the delays of the qualification process.
However it is also reported
that the Australian softball team plans to come to Japan for a training camp on
1 June 2021. If this plan is realized, they will be the first team to arrive.
Increasing Cost and Decreasing Revenue
Because of the
increasing cost incurred as a result of the postponement, the IOC offered an
additional support of reportedly 650 million USD. To reduce costs and support COVID-19
infection prevention measures, TMG and IOC agreed to simplify Tokyo 2020. It
has already been decided that spectators from other countries will not be
allowed to attend the games. As for domestic spectators, a final decision is
expected to be made by the end of June 2021. At any rate, the revenue from the
ticket sales will be significantly less than originally estimated.
The postponement of
Tokyo 2020 has also resulted in additional costs related to the extension of
the employment contracts of the TOCOG staff members, lease contracts of the TOCOG
office, and no doubt, countless other contracts. As to domestic sponsorship
contracts for Tokyo 2020, they were originally for terms ending December 2020.
However, due to the postponement of the Games,
all 68 domestic companies agreed to extend the contract until the end of 2021, despite also facing an unprecedented
stagnant business situation.
As to the case of
deficit or budget shortfall, the Candidature File and Host City Contract (HCC) provides
who will bear the loss.
Candidature File and Host City Contract
IOC elected Tokyo
as the host city of the 2020 Summer Olympic Games in the 125th IOC Session took
place in Buenos Aires, Argentina, from 7 to 10 September 2013. In the bidding process,
Candidate Tokyo submitted a Candidature File to the IOC.
Case of Deficit or Budget Shortfall
As to the case of deficit
or budget shortfall, the Candidature File and HCC provide that, if TOCOG incurs a deficit, TMG will guarantee to cover any
potential economic shortfall of TOCOG, then if TMG should be unable to
compensate in full, the Japanese government will ultimately provide the
Candidature File (*underline added by author for emphasis)
OCOG budget fully guaranteed
TOCOG Budget guarantee
is very confident the TOCOG budget will be balanced. Nevertheless, should TOCOG incur a deficit, the Tokyo
Metropolitan Government (TMG)
has guaranteed to cover any potential economic shortfall of TOCOG,
including refunds to the IOC in advance of payment or for other contributions
made by the IOC to TOCOG.
addition, should TMG be unable to compensate in full, the Government of Japan
will ultimately compensate for it in accordance with the relevant laws and
regulations of Japan.
Compensation mechanism in the event of a budget shortfall
(…) if necessary, TOCOG will activate the compensation mechanism.
compensation mechanism, TOCOG will consult with TMG and the Government of Japan
to ensure that the Tokyo 2020 Olympic and Paralympic Games can take place as
planned. Financial support will be primarily provided by TMG. In addition, should TMG be unable to compensate in full, the Government
of Japan will ultimately provide the financial support in accordance with
the relevant laws and regulations of Japan.
compensation mechanism will function in a similar fashion in the event of full
or partial cancellation of the Tokyo 2020 Olympic and Paralympic Games.
The Candidature File
is referred to in the HCC, which was signed by the IOC, TMG and JOC on 7
September 2013. It provides that, the TMG and TOCOG shall be jointly and
severally responsible for financial undertakings and the Japanese government shall
Host City Contract (*underline added by author for emphasis)
and Several Obligations of the City, the NOC and the OCOG
(…) the City, the NOC (other than with
respect to the aforementioned financial undertakings of the City and the OCOG)
and the OCOG shall be jointly and severally responsible in respect of all
damages, costs and liabilities of any nature, direct and indirect, which may
result from a breach of any provision of this Contract. The IOC may in its sole
discretion take legal action against the City, the NOC and/or the OCOG, as the
IOC deems fit.
foregoing shall be without prejudice to the liability of any other party,
including without limitation, any Government, national, regional or local
authorities that provided financial guarantees during the City's application or
candidature to host the Games or otherwise.
Guarantees, Representations, Statements and Other Commitments
guarantees, representations, statements, covenants and other commitments
contained in the City's application or candidature file (…) shall survive and be binding upon the
City, the NOC and the OCOG, jointly and severally, (…).
On top of that, the
HCC provides that the TMG, JOC and TOCOG must always protect IOC from all
payments and other obligations in respect to any damages, claims, actions,
losses, costs, and/or expenses. On the other hand, the TMG, JOC and TOCOG
promised to waive any claims against the IOC in the HCC.
Indemnification and Waiver of Claims Against the IOC
by the City, the NOC and the OCOG. The City, the NOC and the OCOG
shall at all times indemnify, defend and hold harmless and exempt the IOC,
IOC Television and Marketing Services SA, the OBO, as further detailed in
Section 54 (a) below, and their respective officers, members, directors,
employees, consultants, agents, attorneys, contractors (e.g. Olympic sponsors,
suppliers, licensees (of the IOC, the National Olympic Committees and the
Organising Committees of the Olympic Games) and broadcasters) and other
representatives (each, an "IOC Indemnitee" and collectively,
"IOC Indemnitees"), from all payments and
other obligations in respect of any damages, claims, actions, losses, costs,
expenses (including outside counsel fees and expenses) and/or
liabilities of any nature (including injury to persons or property), direct or
indirect, suffered by the IOC (or any IOC Indemnitee), including all costs, loss of
revenue, and also damages that the IOC (or any IOC Indemnitee) may have to pay
to third parties
(including but not limited to Olympic sponsors, suppliers, licensees and
broadcasters) (collectively, "Claims") resulting from:
acts or omissions of the City, the NOC and/or the OCOG (…), relating to the
Games (including in connection with the planning, organising, financing and
staging thereof) and/or this Contract;
claim by a third party arising from, or in connection with, a breach by the
City, the NOC or the OCOG of any provision of this Contract.
of Claims against the IOC. Furthermore, the City,
the NOC and the OCOG hereby waive any Claims against the IOC and the other IOC Indemnitees, including for all costs resulting from
all acts or omissions of the IOC relating to the Games, as well as in the event
of any performance, non-performance, violation or termination of this Contract.
This indemnification and waiver shall not apply to wilful misconduct or gross
negligence by the IOC.
As to the cancellation
of Tokyo 2020, only the IOC has the right to make such decision on ‘reasonable grounds’. In the case of cancellation by the IOC for any reason,
the TMG, JOC and TOCOG will be considered as waiving any claim or right of
indemnity, and promising to indemnify and hold IOC Indemnities harmless from
any third party claims.
66. Termination of Contract
IOC shall be entitled to terminate this Contract and to withdraw the Games from
the City if:
i) the Host Country is at any time, whether
before the Opening Ceremony or during the Games, in a state of war, civil
disorder, boycott, embargo decreed by the international community or in a situation
officially recognised as one of belligerence or if the IOC has reasonable
grounds to believe, in its sole discretion, that the
safety of participants in the Games would be seriously threatened or
jeopardised for any reason whatsoever;
Games are not celebrated during the year 2020;
iv) there is a violation by the City,
the NOC or the OCOG of any material obligation pursuant to this Contract, the
Olympic Charter or under any applicable law; or if
In case of withdrawal of the Games by the IOC,
or termination of this Contract by the IOC for any reason whatsoever, the City,
the NOC and the OCOG hereby waive any claim and right to any form of indemnity,
damages or other compensation or remedy of any kind and hereby undertake to
indemnify and hold harmless IOC Indemnitees from any third party claims, actions or judgements in respect of such withdrawal or termination(…).
Article 87 of HCC, in the case of dispute among parties, the applicable law is
Swiss law, and the dispute is to be decided
by Court of Arbitration for Sport (CAS).
Governing Law and Resolution of Disputes; Waiver of Immunity
Contract is governed by Swiss law. Any dispute concerning its validity,
interpretation or performance shall be determined conclusively by arbitration,
to the exclusion of the ordinary courts of Switzerland or of the Host Country,
and be decided by the Court of Arbitration for Sport in accordance with the
Code of Sports-Related Arbitration of the said Court. (…)
No one expected
COVID-19 nor the impact that it would have on the Olympic Games at the time of
the bidding process and of the signing of the HCC. As a result, the HCC and Candidature
File provisions related to the losses caused by the postponement were not well understood
among the Japanese people. Now people are starting to recognize the possibility
that the TMG or/and Japanese government will likely incur huge losses as a
result of the postponement or, in the worst-case, cancellation of Tokyo 2020.
Many Tokyo citizens
and Japanese citizens were looking forward to Tokyo 2020 before COVID-19.
However, judging from the national polls, now this excitement seems to turn
into anxiety and concern.
While the whole
world continues to prepare for the postponed Tokyo 2020, the situation is still uncertain. In fact, the
current number of COVID-19 cases in Japan is much larger than at the time when
the postponement was decided in March 2020. It is very hard for involved
individuals to maintain their motivation in light of this uncertainty. On the
other hand, the vaccination push is expected to be a game-changer. Not only the
TOCOG, TMG and JOC, but also multimedia outlets, sporting federations,
sponsors, travel agencies, and the general public are preparing, believing Tokyo
2020 will be held. It’s natural and understandable that host city citizens have
various opinions. However, athletes have been training for the chance to
qualify and compete at the Olympic Games their whole life. Therefore, it is
hoped the situation will improve and the Tokyo 2021 Olympic Games will be held
safely and securely even if they are totally different from what we expected originally.