Editor's note: Lindsay Brandon is Associate Attorney at Law Offices of Howard L. Jacobs

“Tell the white people of America and all over the world that if they don’t seem to care for the things black people do, they should not go to see black people perform.” – American sprinter and Olympic Medalist John Carlos

On 21 April 2021, the Athletes’ Commission (AC) of the International Olympic Committee (“IOC”) received the “full support of the IOC Executive Board for a set of recommendations in regard to the Rule 50 of the Olympic Charter and Athlete Expression at the Olympic Games.” This came over a year after the 2020 Tokyo Olympic Games were postponed due to the Covid-19 pandemic, and almost a year after the IOC and AC embarked on an “extensive qualitative and quantitative” consultation process to reform Rule 50 involving over 3,500 athletes from around the globe.

Since its introduction of the new guidelines in January 2020, Rule 50 has been touted by the IOC as a means to protect the neutrality of sport and the Olympic Games, stating that “No kind of demonstration or political, religious or radical propaganda is permitted in any Olympic sites, venues, or other areas.”  In other words, the Olympics are a time to celebrate sport, and any political act or demonstration might ruin their “moment of glory”.

In fact, the Rule 50 Guidelines say that a fundamental principle of sport is that it is neutral, and “must be separate from political, religious or any other type of interference.” But this separation is not necessarily rooted in totality in modern sports culture[1], particularly in the United States (“U.S.”).  This is evidenced by the United States Olympic and Paralympic Committee (“USOPC”) committing to not sanctioning Team USA athletes for protesting at the Olympics. The USOPC Athletes stated “Prohibiting athletes to freely express their views during the Games, particularly those from historically underrepresented and minoritized groups, contributes to the dehumanization of athletes that is at odds with key Olympic and Paralympic values.”

Athlete Demonstrations, Historically  

While, unfortunately, many countries have a troubling history of colonialism and slavery, the United States continues to grapple with its racist history. It was not that long ago that Jim Crow laws, legalized racial segregation that replaced slavery, were ended in the United States. Though in 1964, President Lyndon B. Johnson signed the Civil Rights Act that legally ended segregation, de facto segregation has continued through voter suppression tactics, housing discrimination, and lack of access to education and healthcare.

Long before the passage of the Civil Rights Act, some Black athletes held prominence as successful athletes. Despite their fame on the field, they were not treated as equals in society. Naturally, sports became a platform for minorities to speak about the injustices of the racism that plagued America. The following are some examples of athlete-activism that have shaped American sports history.

In 1959, professional basketball player Elgin Baylor was scheduled to play in a game at a neutral site in West Virginia. After the hotel his team was staying at refused to serve him and two of his Black teammates, he sat out the game in protest stating that the game was not more important than his dignity. Mr. Baylor’s act is now considered a defining moment for athlete activism during the Civil Rights Movement. In 1961, following a similar experience by Bill Russell and his Black teammates at an exhibition game in Kentucky, they collectively sat out of the game while their white teammates still played. In response to their actions, Mr. Russell said “We’ve got to show our disapproval for this kind of treatment or else the status quo will prevail.”

In recent times it is common for leagues to change venues for such events as All-Star Games due to the institution of policies perceived as discriminatory. To historians’ knowledge, the first change in venue was in 1965 when twenty-one African American athletes in the American Football League arrived in New Orleans, Louisiana only to find out they could not get service for transportation or food. After a unanimous vote to boycott the game, the AFL moved the location to Houston, Texas.

Shortly thereafter, Muhammad Ali famously refused the draft during the Vietnam War, citing his religious beliefs, and was subsequently stripped of his heavyweight title and banned from his sport of boxing for three years. Athletes such as Mr. Russell stood up to support Mr. Ali, who became an extremely polarizing figure as he was subsequently convicted of draft eviction and sentenced to jail time (which was ultimately overturned by the United States Supreme Court).

In 1967, Kathy Switzer famously ran the Boston Marathon, a male-only event. Despite being physically assaulted by race officials, Ms. Switzer finished the race but the Amateur Athletic Union officially banned women from racing alongside men across all covered events (which remained in effect for the next five years).

In 1968, American athlete activism became the hallmark of the Mexico City Olympic Games when sprinters Tommie Smith and John Carlos took the podium (as gold and bronze medal winners in the 200-meter dash, respectively) and raised their fists in the air as a symbol of Black Power and the racist mistreatment of Black athletes in America. Together with Mr. Carlos and Mr. Smith, Australian sprinter Peter Norman wore a patch on his jacket from the Olympic Project for Human Rights, an organization founded and comprised by prominent Olympic athletes to expose the mistreatment of Black athletes in America. As a result, Mr. Carlos and Mr. Smith were required to leave the games and suspended from the U.S. National Team (although they were ultimately allowed to keep their medals). Ironically, they are now memorialized at the IOC museum in Lausanne, Switzerland.

In 1973, tennis star Billie Jean King formed the Women’s Tennis Association and threatened to lead a boycott of the U.S. Open if the event refused to pay female prize winners as much as the men. In the early 1991, professional basketball player Craig Hodges tried to organize his fellow Chicago Bulls teammates – one of the greatest NBA teams in its history – to protest the Finals in response to the beating of Rodney King by Los Angeles police. He failed to do so, and after expressing his concerns about racism in the U.S. to President George H.W. Bush at his visit to the White House, was subsequently excluded from the NBA after the next season despite being a league-leader in 3-pointers.

Professional basketball player Mahmoud Abdul-Rauf was suspended in 1996 for failing to stand during the U.S. National Anthem before a game. Afterwards, Mr. Rauf was excluded from the League. Twenty years later, National Football League quarterback Colin Kaepernick took a knee during the anthem in response to racial injustice and police brutality in America. Following this, numerous WNBA players wore “Black Lives Matter” shirts in support of the movement that would become world renowned following the 2020 murder of George Floyd that sparked protests around the world and significant athlete activism in the midst of a global pandemic.

Impetus for Rule 50

During the 2019 Pan-American Games, American athletes Gwen Berry and Race Imboden both made symbolic protests as they took the podium to accept gold medals in their respective sports. Following the protests, USOPC CEO Sarah Hirshland sent letters of reprimand to both athletes and issued a 12-month probation but warned the athletes (and presumably their teammates) that any future acts of protest would be met with more severe consequences.

Though consequences have long been in place for political protests at the Olympic Games, the introduction of the new Rule 50 Guidelines, as outlined below, undoubtedly emerged after the demonstrations by U.S. athletes at the 2019 Pan-Am Games. Of course, the IOC does not want any politically-motivated distractions during the upcoming Tokyo Games, and certainly, at least part of this is motivated not just by the published intent of Rule 50, but also by the IOC’s business interests. Olympic Games organizers and host countries rely on financial investment from broadcast companies and corporate sponsors. That said, the majority of that money comes from U.S.-based companies – home to the demonstrating athletes. In fact, as long ago as 2008, former USOPC chairman Peter Ueberroth said “Make no mistake about it. Starting in 1988, U.S. corporations have paid 60% of all the money, period” when asked “Who pays the bill for the world Olympic movement?”.

Even before the pandemic, the Tokyo Games were to be the most expensive in Olympic history (to the official tune of $US15.4 billion). However, the Associated Press reported that a government audit reported it could be “at least twice that much,” only made worse by the postponement due to the Covid-19 pandemic. Certainly, with so much American corporate investment in the Olympics, and with an unprecedented visibility of American athlete activism, the attention to Rule 50, and its new guidelines, was no sudden coincidence. 

However, the May 25, 2020 murder of George Floyd by Minneapolis, Minnesota police and the subsequent demonstrations that followed changed everything, including public corporate stance on racism in America.

Application of Rule 50 to the Athletes

As Rule 50 is written, athletes are still able to express themselves through social media and official press conferences. There are no restrictions for athletes in non-Olympic venues; however, given the restrictions in place due to the pandemic, it is unlikely that the athletes will spend any time in Tokyo outside of an Olympic venue.

When it comes to what is actually prohibited, the examples are targeted and few, and as minority American athletes have rightly criticized – are unclear about what the punishment will be for any infringement or what an infringement might look like, as further explained below. The IOC has provided some non exhaustive examples:

• Displaying any political messaging, including signs or armbands
• Gestures of a political nature, like a hand gesture or kneeling
• Refusal to follow the Ceremonies protocol.

Looking at the examples provided, the “gestures” are certainly reflected in specific demonstrations made by American athletes in response to human and civil rights violations in their home country. In other words, a direct line can be drawn to the rise of athlete activism amongst American athletes and the publishing of the above examples of Rule 50 violations.

For those that disregard Rule 50, the IOC says that “if an athlete or participant is in breach of Rule 50 and the Olympic Charter, each incident will be evaluated by their respective National Olympic Committee, International Federation and the IOC, and disciplinary action will be taken on a case-by-case basis as necessary”. In other words, unlike other global disciplinary codes in place for athletes, there may be inconsistent application of the Rule based upon how signatories decide to handle violations of the Rule.

In response, Ms. Berry, who was previously admonished by the USOPC, stated in July 2020 that “like black and brown people in America it’s unclear how the rules will apply to them and fear is the order of the day”. But, by the end of 2020, the USOPC changed its tone and said that it would decline to punish any other American athlete that demonstrated against racial injustice.

Indeed, since the USOPC’s announcement, it appears that NOCs more favorable to free speech (such as the USOPC) might help “pare back” Rule 50, as it realizes that its survey of global athletes about demonstrations at the Games might not have accurately reflected athletes’ true feelings about its impact, nor perhaps entirely understood that some athletes actually fear mistreatment by their own governments for even answering such a question in a truthful manner.

2020 Changed Athlete Activism in America Forever

On 25 May, 2020, as the pandemic was in full swing and sports were largely on hold, the entirety of America’s focus was on the murder of George Floyd. Even though he was one of over 1,000 people that die by police force in the U.S. each year, Mr. Floyd’s murder was particularly gruesome, and documented in full. What followed was months-long protests and demonstrations all over America, and even worldwide.

As the protests continued, sports resumed and athletes began to compete again, including in the NBA and tennis. With a captive audience desperate for sports content, many of these athletes knew they had a platform to speak out about the injustices and how – despite their fortune as professional athletes – what being a minority in America was like. Given the racial justice reckoning in the U.S., the leagues and event organizers were supportive. For example, Naomi Osaka was allowed to wear masks to each of her U.S. Open matches bearing the names of Black individuals killed by police. Even NASCAR, with arguably the most conservative fan base in America, banned the Confederate flag (the flag of the pro-slavery south that lost the American Civil War) from all of its events.

Indeed, while there was nothing controversial about condemning racism in the U.S., for the first time not only were organizations backing their athletes that engaged in public dialogue about the racism., but countless U.S. companies took to any and every public forum to condemn racism.  Many of these companies are the Olympic Games’ biggest sponsors, including Intel, whose webpage on social equity states that “standing on the sidelines is not an option” and features a photo of protested both kneeling and raising a fist in the air.

With overwhelming acknowledgment of systemic racism in the U.S., the USOPC too changed its tune in its approach to Rule 50. But the IOC persists, holding up its Athletes Commission in defense of punishment of athletes demonstrating against the injustices of their home countries. However, the fact that corporate America now publicly supports such demonstrations only shows how out of touch the IOC’s Rule 50 is. How any potential conflicts between the USOPC and IOC on this issue might play out remains to be seen, and any consequences would be purely speculative.

Conclusion

The Olympics have always demonstrated how sports are a unifying force, but they are not insulated from the global events that impact the lives of Olympic athletes every day. Rule 50, it could be said, as outlined by the IOC Executive Board for the 2020 Games, is in response to the rise of U.S. athlete activism, despite the fact that they have the support of Olympic corporate sponsors.  At face value, Rule 50 seeks to protect the Olympics from “divisiveness” but only furthers the legitimate criticism that the IOC undervalues the voices of athletes that make the Olympic Games possible.

[1] It is also noted that historically, there have been protests at Olympic games from various athletes for various reasons. See, e.g., https://time.com/5764614/political-protests-olympics-ioc-ban/.