[Research publication] How Qatar’s migrant workers became FIFA’s problem: a transnational struggle for responsibility

Senior researcher and head of the Asser Institute’s International Sports Law Centre Antoine Duval highlights the global struggle to force the football organisation FIFA to take responsibility for labour rights abuses suffered by migrant workers in Qatar. In an article for the journal Transnational Legal Theory, Duval further shows how FIFA used the United Nations Guiding Principles (UNGPs) as a blueprint to frame its (limited) responsibility towards those workers, and the (limited) impact of this acknowledgment of responsibility by FIFA.

In recent years, The Fédération Internationale de Football Association (FIFA) has mainly dominated the headlines over its corruption problems and the systematic abuse of power by its executives. Since 2012, however, FIFA is also being criticised for having granted to Qatar the organisation of the 2022 World Cup in spite of widespread labour rights abuses suffered by the migrant workers who were building the necessary infrastructure in Qatar.

FIFA was long unwilling to endorse responsibility for workers’ rights in Qatar or elsewhere. The football organisation is a non-profit Swiss association, which until 2019 had no employees or subsidiaries in Qatar and was not directly involved in building the infrastructure for the 2022 World Cup. Formally speaking, FIFA has no direct contractual ties with migrant workers in Qatar and is not controlling the corporations that do.

Global struggle
In his article ‘How Qatar’s migrant workers became FIFA’s problem: a transnational struggle for responsibility’, Duval studies the global struggle to force FIFA to take responsibility for these abuses and remedy them. Duval traces three different (legal and non-legal) strategies that were used by a range of actors to ensure that FIFA bears (some) responsibility for the plight of migrant workers in Qatar: Firstly, litigation before a Swiss court; secondly, a complaint at the Swiss National Contact Point for the OECD Guidelines on Multinational Enterprises, and thirdly, widespread public shaming. Duval describes how each of these three strategies have unfolded and what their influence was on FIFA’s acknowledgement of responsibility.

With his article, Duval aims to sharpen our understanding of who is legally or politically responsible for abuses suffered by workers in the transnational economy, as the FIFA case study “Is (…) an ideal playground to observe how law operates in a transnational context in which the public/private, state/non-state and law/non-law divides are constantly being redrawn and contested.”

Litigation
The primary legal tool available in many legal contexts to ascribe responsibility for the damage caused to an actor – be it an individual or a corporation – is civil liability. So, the first strategy used against FIFA was a civil liability claim. In 2016, three trade unions (the Dutch trade union FNV, the Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers Federation) and the Bangladeshi citizen Nadim Shariful Alam filed a claim against FIFA before the Zürich Commercial Court. The claimants attempted to hold FIFA responsible for the plight of the migrant workers in Qatar and demanded that the Zürich court request FIFA to contribute to encouraging the Qatari authorities – and locally active construction companies – to commit to respecting human rights.

The claimants further asked for FIFA to adopt a number of policy reforms to limit the risk of abuses, and they wanted FIFA to pay compensation for the harm suffered. A mere two weeks after the claim was filed, the Swiss court rejected the trade union’s claims. The court deemed the dispute in question to be non-commercial and therefore outside of the scope of its jurisdiction. According to Duval this swift rejection illustrates the difficulty ‘of relying on the liability model when the involvement of a corporation in a particular harm is only indirect or when it has only a potential capacity to influence the actors directly involved.’ Duval: “So for those toiling on Qatar’s overheated building sites, this litigation strategy was of little use to turn their fate into FIFA’s problem (…).”

Mediation
The second strategy to hold corporations accountable or responsible for a particular transnational problem, was to lodge a complaint before an OECD National Contact Point (NCP). These NCPs are bodies tasked by states with the responsibility of implementing the OECD Guidelines for Multinational Enterprises. In the case of FIFA, the Swiss NCP’s intervention was triggered by a complaint lodged by the Building and Wood Workers’ International (BWI) in 2015.

Where civil litigation failed quickly before the Zürich court, the Swiss NCP proved ‘ready and willing to initiate a mediation’, which resulted in an agreement between BWI and FIFA. In the agreement, FIFA acknowledged its responsibility to mitigate risks for the construction workers building the stadiums for the 2022 World Cup. According to Duval, however, this success story cannot not be linked so much to the NCP’s intervention, but much more so to the wider context of ‘a case surfing on the shockwaves of a massive transnational shaming campaign’.

Widespread public shaming
Duval describes that it was the third strategy, one of ‘widespread public shaming’, that would turn out to be the most effective. A dramatic increase of the coverage of the fate of migrant workers in Qatar by news organisations such as The Guardian, in reports by civil society organisations such as Amnesty International and Human Right Watch and by trade unions such as the International Trade Union Confederation (ITUC) and BWI, put the plight of migrant workers in Qatar on the global agenda.

This ‘networked struggle’ finally shamed FIFA into responsibility, blaming FIFA through a ‘politics of leverage’ aimed at damaging its ‘corporate reputation’. The loudly-challenged FIFA was driven to engage in mediation because of this ‘build-up of massive public pressure fuelled by media attention and civil society mobilisation’. FIFA - which also faced an institutional crisis as a result of the corruption scandal that would bring down FIFA’s president Sepp Blatter – relented because of an urgent need to repair its damaged reputation. It did so by accepting limited responsibility for the labour rights impacts linked to its activities.

Duval concludes that is not through formalised legal processes that FIFA was held accountable for the migrant workers’ plight in Qatar. (Duval actually refers to the ‘conspicuous impotence of courts’ in this case). Instead, it was the ‘relentless public shaming by ‘transnational advocacy networks’ and ‘transnational labour activists’ networks’ that emerged with the World Cup’s stadiums out of the Qatari desert.’

‘Landmark report’
In the wake of its corruption scandal and the growing public criticisms of the Qatar 2022 World Cup, FIFA asked Professor John Ruggie, (former UN Special Representative of the Secretary- General on human rights and transnational corporations and other business enterprises), to produce a report on FIFA’s human rights responsibilities in line with the United Nations Guiding Principles. Ruggie’s ‘landmark’ report led FIFA to enshrine a commitment to respecting human rights in Article 3 of its statutes, which provides that: ‘FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights’.

FIFA’s own ensuing Human Rights Policy, commits FIFA to seek ‘to prevent or mitigate adverse human rights impacts that are directly linked to its operations, products or services by its business relationships, even if FIFA has not contributed to those impacts’. Furthermore, it extends this responsibility beyond FIFA’s own actions and those of its members and subsidiaries to reach all ‘entities that are linked to FIFA through its business relationships’. Duval: “By admitting that it bears some responsibility for activities ‘linked to its operations’, FIFA accepted that even when it does not control the entities directly connected to violations of labour rights, it has to take action to prevent these violations. This is an unmistakable acknowledgment of its political responsibility for labour rights grounded on linkage and connectivity instead of causal contribution to any violation, whose translation into practical action will now be the subject of heated debates.”

Heated debates
And those heated debates will be plentiful. In Duval’s own words: “Finally, despite the conspicuous impotence of courts in this story, the law remains omnipresent in the processes discussed in this article. The contentions wielded by public critics of FIFA have a distinct legal flavour: does Qatar respect ILO Conventions? Are the human and labour rights of migrant workers violated? Does FIFA bear a legal responsibility to ensure that the rights of migrant workers are respected? Moreover, the changes triggered are also affecting legal processes. FIFA underwent fundamental changes to the association’s statutes and some of its private regulations. Both are contractually binding for FIFA’s members and contractual partners and potentially relevant in legal proceedings before the Court of Arbitration for Sport. (…) Lastly, FIFA contributed at least indirectly to legislative changes to Qatari migration and labour laws. All of these changes embody transnational (labour) law in action as a process of constant assemblage between political struggles and multilevel legal processes across the globe. The terms of FIFA’s responsibility are thus being constructed brick by brick at the muddy confluence of ephemeral societal mobilisations and forms of private and public transnational law-making.”

And what about the labour rights of the migrant workers toiling in the unbearable Qatari sun? Although the attribution of the FIFA World Cup has indeed led to reforms of the Qatari labour and migration laws, Duval is critical of their effect. ‘It remains unclear whether those changes will be fully implemented in practice and whether they will survive beyond the horizon of the 2022 World Cup.’

Read the full article
Antoine Duval (2021) How Qatar’s migrant workers became FIFA’s Problem:a transnational struggle for responsibility, Transnational Legal Theory, 12:4, 473-500, DOI:10.1080/20414005.2022.2030633

Dr Antoine Duval LL.M.