04 Sep Rule 50 of the Olympic Charter—Protesting Racial Inequality
[Dhananjay Dhonchak is a student in law at The National Academy of Legal Studies And Research in Hyderabad, India.]
The International Olympic Committee (IOC) issued guidelines in January 2020, expressly stating that gestures like kneeling would constitute a ‘protest’ within the meaning of rule 50 of the Olympic Charter (OC). The contentious rule 50 prohibits any ‘kind of demonstration or political, religious or racial propaganda’ at all Olympic venues and has been used in the past to sanction athletes taking a knee to highlight racial inequality. The rule has come under increased criticism amid protests over racial injustice following the death of George Floyd with organisations calling the provision a ‘symptom of systemic racism and racial discrimination’. This article seeks to achieve two things: a) explain how rule 50 falls foul of international law and b) advocate for extending application of human rights into matters of private law.
Rule 50 and Freedom of Speech and Expression
It is confounding how a private Swiss association can unfairly impinge upon the fundamental right of freedom of speech and expression enshrined under global covenants like the Charter of Fundamental Rights of the European Union (Article 11), European Convention on Human Rights (Article 10), Universal Declaration of Human Rights (Article 19), International Covenant on Civil and Political Rights (Article 19). However, as per the European Court of Human Rights (ECtHR), the right can be restricted in certain cases provided that the restriction is ‘construed strictly’ and the need for such a restriction is established convincingly. The power of treating expressions of solidarity on a case by case basis with no set criteria to establish punishment can hardly qualify as a valid restriction. It is clear from the court’s judgment in the case of Vajnai v. Hungary– wherein sanctioning of a demonstrator wearing a red star in support of workers’ rights was set aside- that rule 50 would fall foul of Article 10. Regardless of the merits of such a case, it is often argued that since the formal addressees of the ECHR are states and not private organisations like the IOC, provisions of the Olympic charter cannot be tested against the ECHR. While the text of the ECHR may only regulate the vertical relationship between the state and its citizens, recent jurisprudence of the court indicates its willingness to enforce provisions of the treaty against private parties. The court has time and again broadened the scope of Article 10 by requiring states to fulfil their positive obligations under the ECHR whereby they are not only required to not interfere with someone’s freedom to express their opinion but also ensure that positive measures of protection are in place to regulate private relationships. The ECtHR in Fuentes Bobo v. Spain, wherein an employee was fired for criticising his employers, held that the state was obligated to protect citizens’ rights under Article 10 against attacks by private individuals. Notably, in a landlord-tenant dispute, it was held that even though the court’s mandate is to adjudicate disputes of public law involving the state and citizen, it cannot remain passive in disputes of a private nature involving a private contract or an administration practice that is arbitrary, discriminatory or inconsistent with the provisions of the ECHR. While, the circumstances involving a dispute between an athlete and the IOC pertaining to rule 50 might differ when compared to the aforementioned cases, one commonality is that all three involve violation of Article 10 by an entity that enjoys considerable power and influence over the other.
Another challenge to rule 50 could come from the European Court of Justice which has time and again enforced provisions of the EU charter against transnational sporting federations. The ECJ while adjudicating a dispute between an athlete and the global governing body for cycling held that provisions of the EU charter not only apply to the action of public authorities but extend likewise to rules of any other nature aimed at collectively regulating gainful employment and services. The ECJ while reaffirming the direct horizontal application of provisions of the Charter in disputes between private parties also evolved a proportionality test in its judgments in the Egenberger and Bauer cases. The test seeks to balance the competing interests and rights of both private parties while applying provisions of the charter. The interest of the IOC in prohibiting political statements through rule 50 as explained in the January guidelines is to maintain the neutrality of sport. It may also be argued that the IOC has the right to a degree of autonomy arising out of Article 12(1)-freedom of association. The right in relation to the IOC would pertain to the freedom to self-govern and autonomously regulate the conduct of the Olympic games. However, the right must be balanceable against the fundamental rights of the athletes for it to be permissible. While, a rule 50 that strictly prohibits only certain political statements like those endorsing a particular presidential candidate might survive this test, the provision in its current form will not. Kneeling in support of racial equality hardly qualifies as a ‘political’ statement and even then does not affect the interest of the IOC in maintaining neutrality in sport.
In the past national courts have proved to be inadequate in protecting the human rights of athletes and regulating the actions of the IOC. The most famous example is that of Martin v. International Olympic Committee, wherein the IOC was named as a defendant before the Ninth Circuit Court of Appeals of the United States of America prior to the 1984 Summer Olympics in Los Angeles. Athletes from twenty seven countries along with two track and field organisations had argued that the refusal of the IOC to include 5k and 10k track events for women while conducting similar events for the male athletes constituted gender discrimination and violation of equal protection rights under the US constitution. The court without going into the merit of the arguments stated that it was ‘extremely hesitant to undertake the application of one state’s statute to alter an event that is staged with competitors from the entire world’. While evaluating the Olympic Charter against every domestic constitution in the world is an unwise endeavour, giving the IOC a complete carte blanche to enforce rules that violate basic human rights is equally undesirable. In such a scenario, European courts like the ECtHR and ECJ which have a transnational character must uphold the human rights of athletes. The jurisprudence of both the ECJ and ECtHR h
Challenge under Swiss Law
Another recourse available to sanctioned athletes under rule 50 lies in rule 61(2) of the Olympic Charter itself. The rule provides the Court of Arbitration of Sport in Switzerland exclusive jurisdiction over any dispute relating to the Olympic Games. This clause of referring disputes to CAS is almost ubiquitously imposed. Proceedings under CAS are governed by Chapter 12 of the Swiss Private International Law Act which allows for arbitration awards to be challenged before the Swiss Federal Tribunal. Article 190(2) of the PILA restricts the scope of such a challenge to five grounds. While, the first four grounds are purely procedural, clause ‘e’ states that an award can be appealed if it is ‘incompatible with Swiss public policy’. An arbitral proceeding under CAS is restricted to the specific dispute before it and does not have the power to entail the kind of constitutional activism required to invalidate rule 50. However, an appeal under Article 190(2)(e) to the Swiss Federal Tribunal will most likely hold some water. This is because Article 16 under the chapter of fundamental rights in the Swiss constitution talks about freedom of expression and information and can be said to form an integral part of Swiss public policy. Moreover, international treaties ratified by Switzerland which guarantee similar freedoms to express opinions can also be said to form a part of its public policy. In 2012, while setting aside a CAS award for violating swiss public policy, the court had carried out a balancing of the rights of the player and his obligations under FIFA’s rules and regulations. Due to the excessive nature of restrictions imposed by rule 50, it is unlikely that it will survive such a balancing test.
The IOC due to its transnational character and place in the sporting world has the ability to greatly affect athletes’ enjoyment of their human rights. Its power and might is evident from the fact that even national courts of large democracies refuse to regulate its conduct. Thus, it is not hard to imagine the kind of power it enjoys over individual athletes determined to participate in the largest sporting event in the world. The current state-centric human rights discourse has to a large extent failed to address this massive power differential. However, recent judgments by ECtHR and ECJ, as argued in this article, showcase a newfound willingness to regulate private relationships especially where one party is in a position of relative power over the other. Such a realisation by the courts have guided decisions in landmark cases like Google v Costeja– better known as the ‘right to be forgotten case’. In Costeja, EU citizens were given the right to demand erasure of their data from global search engines and social media companies. It is pertinent for courts to recognise that just like citizens require protection from big data companies, they require similar protections against powerful transnational sporting federations. While, these cases are primarily restricted to worker’s rights or privacy rights and are not sports-specific, they have had a larger impact in expanding human rights discourse to the conduct of private parties. Such an impact is necessarily a positive one as human rights originated with the idea that they must be enjoyed by all in all spheres. Rule 50 is a draconian rule that unfairly impacts athletes from already marginalised communities. Regardless of which forum steps up to protect athletes’ freedom to express their opinion, rule 50 must be struck down at the earliest.