Abstract
The promotion of the Olympic ideals is strongly correlated with the effective protection of human rights in the sporting context. However, countless practical examples of violations of athletes’ human rights have shown how the link between sport and human rights is continuously placed under strong pressure. Taking into consideration the thesis according to which human rights are an indirect legal source of the lex sportiva, this study analyses the gaps in the protection of the fundamental rights of athletes. By verifying the potential effects on the sporting juridical bodies’ competences and on the effective implications in sporting affairs for the European Court of Human Rights, the hypothesis of an emerging incorporation of human rights in sports legal orders will also be investigated. At the end of these pages, by identifying the limits and perspectives of the judicial protection of athletes’ human rights, we should also be able to evaluate if, and to what extent, a reform of sport justice bodies is urgently needed in order to guarantee the function of sport as an instrument of peace and sustainable development, vehicle of rights, and source of social inclusion.
INTRODUCTION: OLYMPISM, HUMAN RIGHTS, AND GAPS IN THE PROTECTION OF ATHLETES
‘The goal of Olympism is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity’ 1
The grand ideals enclosed in the Olympic Charter suggest the existence of a close nexus between sport and human rights. Within the ‘idealist internationalisms’ context, some authors have underlined this parallelism by emphasising the universal values of equality, fairness, justice, respect for the person, rationality, international understanding, peace, autonomy, and excellence. 2 In this perspective, by sharing identical purposes, Olympism essentially tends to be identified with humanism. 3
This nexus has received large recognition within the international community. Described as ‘a tool of peace and sustainable development’ by the United Nations (UN) 4 , as ‘a vehicle of rights’ by the Council of Europe (CoE), 5 sport has been namely addressed as ‘a source of, and driver for active social inclusion’ by the European Commission (Commission), 6 the European Parliament (EP), 7 and the Council of the European Union (Council). 8 Studies about the complex relation between sport and human rights under different perspectives are currently ongoing. 9
But despite its grand ideals, Olympism has come under major criticism in recent years: accelerated commercialisation, professionalisation of athletes, discrimination against race, gender, and ethnicity in the sporting arena, and scandals concerning bribery and corruption, 10 only to name a few. According to these criticisms, the inconsistencies between theoretical organisational ideals and practical organisational conduct within the Olympic Movement are outstandingly remarkable. In fact, concerning the practical application of the Olympic ideals, the actions undertaken by the International Olympic Committee (IOC) and the International Sport Federations (ISFs) in this context seem not to be up to par, often neglecting these ideals, thereby producing serious violations of human rights.
On the other hand, awareness and attention to human rights violations in sports have significantly increased over time. The CoE and the EU have clearly underlined on several occasions that racial discrimination, racial abuse, and vilification are, to this day, rooted clichés in international sports. 11 However, with regard to the access opportunities to services or the availability of athletic facilities, ethnic or religious minorities often continue to be discriminated against in the athletics world. 12 The potential cases of discrimination against people with disability are currently taken into account by some national authorities, 13 while discrimination against women still appears to be a widespread practice. 14 Furthermore, reported cases of homophobia, transphobia, and institutional discrimination against the LGBT community in sporting contexts are growing exponentially. 15 At the same time, limitations of athletes’ freedom of expression have proliferated, 16 and the right to a fair trial and the presumption of innocence is ever more under threat. 17 The United Nations High Commissioner for Human Rights (OHCHR) has recently stated that ‘many athletes face obstacles in accessing effective remedies and obtaining full redress for violations of their human rights in sport, since most disputes related to professional sport are awarded through private dispute resolution mechanisms that are not designed to fully address human rights violations complaints’, 18 thereby highlighting the gaps in the protection of these rights in professional sport. 19
It is clear that human rights violations and their effective protection in the sporting context arouse great interest not only in public opinion but also at a political level. Inconsistencies between jurisdictions in terms of protecting and remedying human rights violations in sport can undermine the function of sport as an ‘instrument of peace and sustainable development’, ‘vehicle of rights’, and ‘source of social inclusion’. In fact, these gaps irremediably compromise the nexus between sport and human rights, configuring in practice a simple juxtaposition of ideals with no real links and legal effects. Furthermore, the protection of athletes’ rights also turns the spotlight on the issue of the great autonomy for the sports authorities to manage their internal affairs beyond undue State interference and on the legal limits of such autonomy. 20
The fundamental principle of the autonomy of sport therefore seems to clash with the legal and moral obligation to protect human rights, raising several interesting juridical questions: what is the effective role of human rights in the Olympic Movement? Can, and if so to what extent, the protection of human rights be considered as a real and legally binding criterion, rather than a simple declaration of intent or a political engagement of the sporting authorities? How could the traditional autonomy of sport eventually be balanced with the effective protection of athletes’ human rights? Could (or should) sporting affairs be submitted to the European Court of Human Rights’ (ECtHR or Court) jurisdiction? Is it necessary to establish a global supervisory authority capable of operating in various forms and at different levels to monitor the respect for human rights within the Olympic system and in the world of professional and amateur sport?
In order to answer these questions, this article will first analyse the Olympic Movement's legal status (Section 2) and the judicial sporting bodies’ competences (Section 3). The thesis according to which human rights are an indirect legal source of the lex sportiva will subsequently be verified (Section 4), and this verification will be carried out by taking into consideration the hypothesis of an emerging incorporation of human rights in sports legal order (Section 5). The aim is to illustrate potential solutions to the gaps in human rights protection in sport (Section 6).
OLYMPIC MOVEMENT’S LEGAL STATUS: OLYMPISM AS RELIGIO ATHLETAE OF TRANSNATIONAL PRIVATE ORGANISATIONS
The legal status of the Olympic Movement and Sporting Organisations (SOs) appears to be very controversial, suggesting prima facie that the role and protection of human rights in sporting context is a very delicate and complex issue. As known, the Olympic Movement is traditionally conceived as a ‘universal and compact intertwining of international and national institutions’ whose mission is to promote and develop sport in society, 21 and it is commonly represented as a decentralised pyramidal structure, in which the main groups federate and relate to each other according to vertical relationships, from the top to the bottom and vice-versa. 22
Within this pyramidal federal structure, each group binds together and recognises itself in ‘sporting communities’, entrusting the sports authorities with the task of deciding the rules of the game and organising the competitions. 23 The IOC and the ISFs are at the top of this structure: the IOC, acting as a catalyst for collaboration between all parts of the Olympic family and establishing the fundamental principles of the organisation of SOs, ensures the promotion of the Olympic Charter's values; 24 the ISFs have exclusive competence regarding regulation, control, and promotion of the specific sport of their competence. 25 As pointed out by the Parliamentary Assembly of the Council of Europe (PACE), the ISFs ‘are themselves composed of national associations that are, in turn, made up of the regional associations, leagues and clubs’. 26
The legal status of SOs depends on the country in which they are legally registered although, more generally, they are all classifiable as ‘membership organisations’. 27 Among these, the most important are set up as non-profit organisations (for example, the IOC or the main ISFs, governed by Swiss national law), 28 while others are to be considered as public-type organisations (for example, some National Olympic Committees, which perform a public function), 29 or simple private or even hybrid associations, which carry out activities of public interest (for example, national federations). 30 There are also other legal systems, such as the EU, in which national federations and leagues, despite being registered as non-profit organisations, are in fact considered as corporations operating in a monopoly situation. 31
Therefore, despite the general tendency to consider them as ‘membership organisations’ in a ‘global private regimes’ framework, the legal status of SOs within the pyramidal structure described above is by no means homogeneous. 32 In such a varied context, however, internal affairs are mostly governed by the so-called lex sportiva, consisting of a set of federal laws of a private nature with an international vocation. 33
The transnational legal system thereby established by international and national SOs on the basis of the lex sportiva defined by the IOC and the ISFs, applicable to all sports communities, is in a way comparable to Canon law, applicable to all Catholic communities, 34 both being legal systems characterised by a bond of affiliation not related to a territorial space. In fact, the coercive force of the SOs’ legal systems, if exercised, takes the form of ‘exclusion’, with effects very similar to a religious ex-communication carried out according to Canon law, since, in both cases, these effects are to be considered legally binding regardless of national borders. The legal systems established by SOs, just like the transnational religious legal systems, overlap with the national ones, intertwining, according to the traditional perspective proposed by the theory of legal pluralism, in a wider network of legal systems. 35
Furthermore, SOs’ members must respect the ‘philosophy of Olympism’, 36 which has always been and is still regarded as a way of life, almost as a form of religion, by numerous protagonists of the sport scene. 37 In this sense, by analogy, questioning the effective role of human rights in the Olympic Movement corresponds in some ways to reconsidering the role of human rights in religious systems.
This parallelism allows us to highlight the international nature of the sources of the fundamental operational and organisational requirements of SOs and the trans-nationality of their effects. In this context, as argued by the OHCHR, ‘while athletes may sometimes be able to make human rights-related claims against sport governing bodies before domestic courts, these courts generally only have jurisdiction over their respective national federations and national Olympic committees, not over international federations and the IOC, where many decisions that may negatively impact or violate human rights originate. Domestic courts may provide domestic remedies, such as prohibiting the application of discriminatory international rules at national competitions, but this can put national sport in ‘an untenable position between two seemingly intractable forces’, in other words the order of a domestic court and the directive of an international federation, and jeopardise the ability of athletes to compete internationally’. 38
Therefore, in order to overcome this situation of clear contrast, the protection of human rights in sporting context should be first of all guaranteed at an international level and by specifically established sporting judicial bodies.
THE JUDICIAL COMPETENCE: AUTONOMY OF SPORT AND APPLICATION OF HUMAN RIGHTS STANDARDS
Pursuant to the principle of sporting autonomy and the relative freedom of internal affairs management by SOs beyond any undue interference by State bodies, the application and interpretation of human rights in sports legal systems should be, in the first instance, the competence of judicial sports bodies. 39 The members of SOs, by virtue of arbitration clauses included in the statutes and laws of various sports governing bodies, have in fact the obligation to refer to the sports judicial bodies for disputes concerning the sports system to which they belong. 40 The acceptance of these arbitration clauses is a fundamental condition for participation in a competition organised under the aegis of a sports federation, and in the event of a violation of these conditions, disciplinary sanctions could occur. Consequently, athletes, as well as clubs, due to the professionalisation of sport and the monopolistic position of the ISF, have no choice but to accept the arbitration clause. In this case it is therefore a ‘compulsory arbitration’. 41
Any appeals are only admitted before the Court of Arbitration of Sport (CAS) which, as known, is at the top of the judicial apparatus of the main federations. 42 This arbitral tribunal, based in Lausanne and placed since 1994 under the aegis of the International Council of Arbitration for Sport (ICAS), 43 is responsible for various functions: ‘the development of common legal principles; the interpretation of global rules and the influence on the sporting legislative process; and the harmonisation of global sports law’. 44
CAS judgments tend to be definitive even when SOs’ members decide not to comply with mandatory arbitration clauses. This is due to the liberal regulation of arbitration in Swiss law and the tendency of Swiss courts to deny jurisdiction altogether when an association's contested decision concerns the lex sportiva. 45 It should be indeed noted that CAS awards, even if rendered abroad, are governed by Swiss arbitration law, international cases by Article 176 and following of the Swiss Private International Law Act (PILA) and domestic cases by Article 353 and following of the Swiss Civil Procedure Code (SCPC). 46 Moreover, the jurisprudence developed by the ECtHR on the basis of Articles 6(1) and 7 of the ECHR states that the parties, by concluding an arbitration agreement, validly waive their right of access to public courts pursuant to Article 6(1) of the ECHR. 47
In light of the above, the sports justice seems to be structured on a system that excludes any external interference, thereby guaranteeing de facto and de jure the autonomy of sport 48 and allowing the Olympic Movement to be conceived in practice as a real ‘legal system’. 49 In this context, the CAS acts as a ‘supreme court’, placing itself at the apex of a complex set of audit mechanisms disseminated worldwide and representing the main institution of the global sports legal system, whose role should also be to implement and protect human rights beyond any effective control by national or international jurisdictions. 50
It should be emphasised here that, due to the rigorous application of the principle of autonomy of sport and the relative lack of national and international control, together with the uncertain definition of the obligation of the CAS in this regard, the implementation and protection of human rights in sports affairs may prove to be ineffective.
In light of their juridical status, analysed in the previous discussion, the main SOs are theoretically not subject to any direct and explicit obligation to respect human rights, since international obligations on this matter are of a vertical nature, between the State (the holder of the obligation) and the individual (the beneficiary), while the direct horizontal effects, according to which non-State actors should be subject to a direct and explicit obligation to respect human rights, are still largely limited. 51 This interpretation has been confirmed by the CAS, which argues that ‘the fundamental rights and procedural guarantees granted by international treaties for the protection of human rights are not meant to apply directly in private relationships between individuals and therefore are not applicable in disciplinary cases judged by private associations’. 52
Furthermore, some authors have pointed out that in order to ensure the effective legislative transposition of international and European human rights texts into the laws applicable by the arbitrators regarding disputes related to this matter, a special provision to this effect would be necessary. 53 This principle is actually by no means envisaged in sports disputes. The statute of the CAS, with regard to the law applicable to this matter, establishes that the ‘panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision’. 54 Since the default primary rules applicable in appeals before the CAS are the relevant sports regulations, 55 and since neither these regulations, nor the statutes of the main sports governing bodies include human rights norms and standards as binding legal sources for judgement, the application of human rights standards in sport disputes appears to be somewhat limited.
However, it should be noted that international and European treaties would have vertical and horizontal effects in the cases where the SOs are set up as public organisations or hybrid associations, which carry out activities of public interest. Moreover, it could be argued that SOs would be subject to direct human rights responsibilities where they are de facto and de jure considered as corporations, as provided in the UN Guiding Principles on Business and Human Rights (UNGPs). 56 In this sense, for instance, the CoE underlines that ‘the role of business enterprises as specialised organs of society performing specialised functions, [which are] required to comply with all applicable laws and to respect human rights (“the corporate responsibility to respect human rights”)’. 57 In general terms, the dominant position on vertical and horizontal effects of international human rights law, according to which only State actors are legally bound by the obligations arising by the human rights treaties, is increasingly contested; several authors have taken a broader perspective, developing theories of shared responsibility between State and non-State actors. 58 In addition, at international level, there have also been cases in which human rights obligations have been upheld against private actors; this trend can be observed, for instance, in the Court of Justice of the European Union (CJEU) case-law 59 or some private dispute arbitrations. 60 Real developments have been made in various contexts towards the horizontal effect of human rights in private relationships; this could be in part noted also in sporting context, and in particular in the recent ECtHR case law.
The ECtHR has questioned the exclusive competence of the CAS and the limited application of European standards since the famous Mutu and Pechstein case. 61 In this case, a professional footballer and a professional speed skater brought an action before national courts and the ECtHR concerning decisions of international sports governing bodies definitively confirmed by the CAS. The appellants submitted in particular that the CAS could not be regarded as an independent and impartial tribunal. 62 Claudia Pechstein also complained that she had not had a public hearing before the disciplinary board of the International Skating Union (ISU), the CAS or the Swiss Federal Supreme Court (DFT) despite her explicit requests. 63 In the Pechstein case, as underlined by Baddeley, ‘the Munich Court of Appeal accepted the jurisdiction of the case […] on the assumption that forcing athletes to arbitration before the CAS constitutes an abuse by international federations due to their dominant position’. 64 At the same time, this ruling was overturned by the German Bundesgericht which upheld that, despite the dominant position of the international federation, the athlete had freely given her consent and therefore the CAS had jurisdiction over the case. On appeal, the decision of the ECtHR was different from that of the German Bundesgericht, without however annulling the CAS award. In fact, the ECtHR recognised the effective utility of arbitration in certain circumstances, but it also admitted that athletes are forced to accept arbitration and that the pressure to accept such arbitration is certainly higher than that to which individuals and entities in business are subjected. However, by insisting on the necessary independence and impartiality requirements of the arbitral tribunal, both of which were confirmed in this specific case, the Court recognised the jurisdiction of the CAS without definitively annulling the award. 65
The Mutu and Pechstein case has definitively recognised that CAS affairs could be submitted to the ECtHR jurisdiction, in the light of the essential compulsory nature of sporting arbitrations. However, the fact that the Court only ruled on the procedural rules of the CAS, without entering into the merits of the case or taking into account human rights violations against athletes by national or international sports governing bodies, has casted doubts on the effective ECtHR jurisdiction and the application of the European human rights standards. These would only concern procedural rules governing sporting justice, leaving a large margin of discretion to the judicial sports bodies on the merits of the case. For this very reason, the OHCHR has pointed out that ‘whether, and under what conditions, the ECtHR could exercise jurisdiction in such cases […] remains largely untested’. 66
By contrast, it should be noted that this case has clearly introduced the idea according to which human rights are an indirect legal source of the lex sportiva, as will be illustrated in the following discussion.
HUMAN RIGHTS AS AN INDIRECT LEGAL SOURCE OF THE LEX SPORTIVA
The idea of human rights as an indirect legal source of the lex sportiva is suggested by the concept of ‘indirect horizontal effect’, which has evolved in the absence of a direct horizontal effect. Under this construct, while the State remains directly and internationally responsible for the conduct of non-State actors that interfere with the enjoyment of human rights, indirect obligations, which derive from international law, are imposed on non-State actors. The State's positive obligation to protect individual beings would produce a diagonal indirect effect in the horizontal relationship between private parties. 67 This idea is supported in sporting contexts by some authors; an idea according to which ‘while not admitting any direct horizontal effect in relation to the rights and freedoms provided for by the ECHR, in the sense that these are not directly applicable in private relationships, States undoubtedly have a positive obligation to safeguard the rights enshrined therein, including in relationships between private individuals’. 68
This is a hypothesis not explicitly excluded by the DFT, which is the appeal mechanism for CAS (as underlined in the previous discussion, CAS awards, even if rendered abroad, are governed by Swiss law). Pursuant to the DFT, although ‘the ECHR is not directly applicable to arbitration, since the violation of the Convention is not included among the limited appeal grounds provided for by art. 190 (2) of the Private International Law Act (PILA), the possibility of taking into consideration the principles underlying the provisions of the Convention cannot in any case be excluded’. 69
By contrast, indirect horizontal effects in sporting affairs are partially admitted by the ECtHR. In the Mutu and Pechstein case, for example, the ECtHR declared its jurisdiction over the procedural rules of the CAS by arguing that ‘the acquiescence or connivance of the authorities of a Member State towards acts of a private nature that violate the rights […] of individuals under its jurisdiction may involve, according to the Convention, the responsibility of the State itself’. 70 This approach was implicitly confirmed by the ECtHR in the Ali Riza and Others v Turkey case, 71 in which the appellants - a professional footballer, three amateur footballers and a football referee - contested the independence of the Turkish Football Federation (TFF) Arbitration Committee that had previously issued decisions against them. In the Ali Riza case, facts concerned an employment dispute between the appellant and his former football club. Mr Riza alleged, inter alia, the existence of a situation of partiality on the basis of an underlying bias towards sports clubs by the members of the commission who had decided on their cases, having been appointed by the Board of Directors of the TFF itself, and being the latter mainly composed of former members or managers of football clubs. 72 The Court not only confirmed the presence of a violation of the principles of independence and impartiality on the basis of Article 6(1) of the Convention, but also underlined the positive obligation for States to safeguard the rights enshrined therein also with regard to relations between private individuals. 73 These principles are finally applied, in a clear and unequivocal manner, in the recent cases of Sedat Doğan v Turkey, 74 Naki and Amed Sportif Faaliyetler Kulübü Derneği v Turkey 75 and Ibrahim Tokmak v Turkey. 76 In these cases, in addition to the ‘classic’ violation of Article 6 ECHR, 77 the Court held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the Convention. The TFF had namely adopted sports sanctions and financial penalties against the appellants on account of statements to the media or messages posted or shared on social media, which were regarded as an unsportsmanlike language capable of debasing the image of football, inciting violence and disorder in the sport and giving rise to protests by supporters. 78 The Court argued, in each of the three cases, that the reasoning given by the national bodies in their decisions to impose sanctions on the appellants demonstrated a failure to carry out an adequate balancing exercise between, on the one hand, the appellants’ right to freedom of expression and, on the other, the right of the TFF's leadership to respect for their private lives and the other interests at stake, such as maintaining order and peace in the football community. In each of these cases, the Court considered that the national authorities had not carried out an appropriate analysis, having regard to all the criteria laid down and applied by the Court in its case law concerning freedom of expression. In the Court's view, the government had not shown that the reasons given by the national authorities to justify the contested measures had been relevant and sufficient, and that those measures had been necessary in a democratic society. 79 For the first time, the ECtHR ruled on the procedural rules of sporting authorities, by taking into account also the criteria laid down and applied in its case law in order to state the merits of the cases.
In this perspective, the private and transnational nature of sporting rules does not appear to be an insurmountable obstacle to the application of international and European human rights standards. This approach is also supported by the CJEU, which has stated that the EU Treaties ‘can invalidate a provision contained in the rules of an international association which covers many Countries that are not States Members of the Community’ 80 and that ‘each sovereign State has the right to declare illegitimate and therefore not applicable in its territory a particular type of provision contained in the rules of an international association of a private nature’. 81
It is precisely in sports affairs that this principle has been established. EU law, argued the CJEU, ‘does not apply only to the action of public authorities’, because its effectiveness ‘could be neutralized by obstacles deriving from the exercise of the legal autonomy of associations or organizations that are not established under a public law regime’. 82 This was stated with particular reference to sporting regulations in conflict with EU fundamental freedoms 83 and, more recently, to the principles of law concerning Union citizenship, 84 but this clearly implies the application of the human rights standards in all cases falling within the scope of the Treaties. 85
This position is partly admitted by the CAS, according to which its ‘jurisdiction cannot be imposed to the detriment of athletes’ fundamental rights. In other words, athletes involved in a CAS arbitration cannot be fundamentally prevented from obtaining at least the same level of protection of their substantive rights as they could obtain before a State court’. 86 The reference to human rights has in fact been established since the beginning of the CAS activity, and in particular since its advisory opinion FFTri v ITU, in which it was stated that ‘any action taken against an athlete in matters of doping must respect the principles of international and national law, as well as the laws governing the protection of human rights’. 87
Sports judicial bodies should therefore apply standards and case law generally applied in the country where the SOs concerned are domiciled. In this sense, it might be useful to recall the famous Pistorius case, 88 in which a professional athlete from South Africa appealed against a decision of the International Association of Athletics Federations (IAAF) 89 . In fact, on that occasion the Federation held that the ‘flex-foot Cheetah’ prosthetic legs worn by the appellant, a double amputee since he was eleven months old, constituted a technical device capable of providing an advantage over an able-bodied athlete in violation of IAAF Competition Rule 144.2(e). Mr. Pistorius therefore argued here that the IAAF decision, because it had not sought accommodation appropriate to the situation as required by law, violated its obligation of non-discrimination. He further stated that the IAAF, by declaring him ineligible in all the sanctioned events without attempting to seek an alternative solution, modification or adjustment that would allow him to participate in such events on an equal basis with all other able-bodied athletes, had clearly violated the International Convention on the Rights of Persons with Disabilities (CRPD). The applicability of the latter, having not yet been ratified by the Principality of Monaco – where the IAAF is based – was however rejected. 90
This interpretation was confirmed by the George Yerolimpos v World Karate Federation (WKF) case, 91 concerning disciplinary sanctions issued by the Disciplinary Tribunal (DT) of the WKF Disciplinary Legal Commission, which is based in Madrid, against Mr Yerolimpos, honorary President of the Hellenic Karate Federation and member of the Hellenic Olympic Committee. In this case, the appellant was sanctioned for his criticism against the WKF president; 92 the CAS emphasised here ‘the importance of protecting […] freedom of speech and the right to criticize in good faith those in positions of authority even if there may be errors of fact in the criticism; the jurisprudence of the ECtHR on this subject is to be considered indicative, and, in jurisdictions to which it applies, compulsive’. 93 On this occasion the CAS expressly recognised the controversial applicability of the rights enshrined in the ECHR to disciplinary proceedings of sports governing bodies, confirming that the jurisprudence of the ECtHR is to be considered compulsory in the jurisdictions to which it applies and, in any case, must be considered at least indicative. In these terms, it is an ‘indirect’ application of the ECHR, ‘functional’ to the country where the SO concerned is domiciled. 94
In light of the above, it can therefore be said that for SOs registered in a Country Party to the ECHR or a Country that has at least ratified the most important international treaties on the subject, human rights represent a source of law on the basis of which sporting regulations must be assessed.
In support of such an interpretation, the recent International Declaration on Human Rights elaborated within the CoE stated that SOs ‘have a responsibility to respect and protect human rights, including the right to remedy human rights violations’. 95 This also appears to be entirely consistent with the fundamental principles of Olympism, whose primary goal is to ‘place sport at the service of the harmonious development of humanity, in order to promote a peaceful society interested in the safeguarding of human dignity’. 96
Thereby, with the IOC and the most important ISFs being registered in Switzerland (a Party to the ECHR), athletes and members of SOs can, at least in principle, rely on the protection provided by the Convention in relation to the protection of human rights in the sports context. In the cases where an SO has its seat in a country that is not Party to the ECHR, or that has not ratified certain specific Conventions, the main international treaties should nevertheless be applicable. In the absence of a specific Convention in force on human rights, the Universal Declaration of Human Rights is the first point of reference for recognition of rights in sports context. 97 Situations concerning the accessibility to sports activities, and the way in which the sports activities are practised and managed, could be potentially covered by the International Covenant on Civil and Political Rights (ICCPR) 98 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 99 . The accessibility and the equal treatment of specific categories could be covered by the Convention on the Elimination of All Forms of Discrimination against Women, 100 the International Convention on the Rights of the Child, 101 and the International Convention on the Rights of Persons with Disabilities. 102 For this very reason human rights should therefore be part of the transnational legal system of sport, thereby helping to ‘unify’ the different legal systems concerning the same population and/or geographical area. The sharing of fundamental principles would in fact determine, as claimed by the neo-constitutionalism theorists, the passage from a ‘pluralism of orders’ to a ‘pluralism of principles’. 103
However, this indirect application of human rights in the sporting context is not evident and unanimously recognised. The absence of consensus and clarity could then lead to a potentially differentiated integration of these rights with the lex sportiva, which in turn would result in the establishment of different degrees of protection of the human rights of athletes, thereby violating the principle of universality of the transnational sports system. On the basis of these considerations, in order to ensure a coherent and effective application of human rights in the transnational sports legal system, a reform of the statute of the CAS appears necessary. Furthermore, in order to ensure the ‘direct’ applicability of the human rights established by international and European Conventions, the IOC and the ISFs should in turn integrate these rights with the lex sportiva.
THE INTEGRATION OF HUMAN RIGHTS IN THE LEX SPORTIVA
In recent years, the integration of human rights into the lex sportiva has been strongly suggested by the CoE with particular reference to the statutes of the IOC and the ISFs. The PACE, for instance, has recommended to FIFA and UEFA to incorporate ‘human rights into their system of governance, including criteria relating to the protection of human rights in the selection processes of countries that will host major sports events and in the procurement procedures for the selection of commercial partners’. 104 In general terms, the PACE has suggested on several occasions that ‘all sports organisations must give due consideration to the effective protection of the fundamental rights enshrined in binding international instruments and, in Europe, in the ECHR’. 105
Much more explicit were the Ministers responsible for Sport who, meeting in Tbilisi for their 15th Conference within the CoE, invited ‘sports organisations to introduce respect of human rights and fundamental freedoms as an integral part of their statutory objectives, internal regulations and codes of conduct, policies, plans, projects and other strategic documents to further strengthen their ability to prevent and respond to human rights violations’. 106
The integration of human rights in the lex sportiva seems to be intended not only to guarantee the fundamental rights of athletes in the sporting context, but also and above all to merge the ‘Olympism philosophy’ with the international human rights policy. This idea is in part suggested, for instance, by the case Šimunić v Croatie, 107 where the ECtHR assessed a sports disciplinary sanction against the Croatian international footballer Josip Šimunić by taking into account the ‘role-model’ status of athletes in order to promote the fundamental values of human rights. The Court notably rejected the complaint of the appellant against his conviction for chanting a World War II Ustasha slogan while playing for his national team after the victory against Iceland during the FIFA World Cup play-off in 2013. It was argued that ‘a speech incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. 108 It was also noted that the ‘Ustasha movement had originated from fascism, based, inter alia, on racism, and thus symbolising hatred towards people of a different religious or ethnic identity and the manifestation of racist ideology’. 109 The Court finally underlined how ‘the appellant, being a famous football player and a role-model for many football fans, should have been aware of the possible negative impact that a provocative chanting could have had on spectators’ behaviour and he should have refrained from such conduct’. 110 The ECtHR has emphasised the ‘role-model’ status of athletes, thereby implicitly suggesting that respect of ‘philosophy of Olympism’ should be convergent to the promotion of human rights.
This kind of convergence between Olympic philosophy and international human rights is particularly recommended by the UN, according to which SOs ‘should encourage athletes to use their influence and experience as role models’, 111 and to be ‘leaders who contribute to promote peace and human understanding through sport’. 112 Generally, the UN has stated on several occasions that sporting objectives must be consistent with human rights obligations, 113 emphasising more particularly the importance of their promotion through the Olympic ideals 114 and through compliance with applicable laws and international principles, including the UNGPs, by all entities involved in the conduct of major sporting events. 115 Pursuant to this perspective, it could be considered also the so-called extra-territorial human rights obligations (ETOs); SOs would have to comply with human rights standards where they operate and carry out substantial business, even in the States that are not Party to the ECHR or that have not ratified the most important international treaties on human rights. 116
Furthermore, in support of the principles contained in the Resolution ‘Sport as a means to promote education, health, development and peace’, and in order to increase its involvement in international human rights policy, the IOC has been granted Observer status to the UN since 2009. 117 All of the above clearly shows that the UN have widely recognised the importance and the strength of sport as a means to promote tolerance and respect, to empower women and young people, to develop individuals and communities, as well as to achieve goals in areas such as health, education, and social inclusion. 118
Looking at it from a ‘Tocquevillian’ perspective, the political culture of SOs seems to be influenced by the recommendations of international public authorities and the emerging integration of sports authorities into international human rights policies. 119 The recent wave of reforms initiated by the IOC and some ISFs partly confirms this trend.
The remarkable development and acceleration that the process of integrating human rights into the lex sportiva has undergone in recent years seems to confirm this perspective: the IOC, for instance, has not only developed a comprehensive strategy on human rights, but has also established a Human Rights Unit and a Human Rights Advisory Committee. 120 For their part, some ISFs, like FIFA, have included the principles of respect and promotion of human rights among their statutory objectives, 121 setting up specific Human Rights Units, strategies, and policies. 122
FIFA, UEFA and the IOC have also introduced new human rights clauses in the Contracts for the cities that will host the Olympic Games and new binding requirements on the protection of human rights and risk management in international football competitions, 123 not to mention the adoption of the ‘Sporting Chance Principles on Human Rights in Mega-Sporting Events’, which clearly refer to the UNGPs as standards to be followed. 124
Such a commitment would indeed seem to confirm not only the presence of an emerging process of legal inclusion of human rights in the sports system, but also the ‘hybrid’, public-private legal status assigned to SOs by the lex sportiva, since these are based on very heterogeneous norms and practices. 125
This process of ‘juridification’, integrating the rules and/or provisions of international law into the lex sportiva, would first imply the possibility of invoking these rules and provisions directly before the sporting judicial bodies and the CAS. It would be an important turnaround in the case law of CAS which, as already mentioned, had previously stated that the fundamental rights and procedural guarantees granted by international treaties for the protection of human rights were not directly applicable in private relations between individuals and therefore not directly applicable in disciplinary cases judged by sporting judicial bodies and the CAS. 126
In this sense, the possibility to rely on the direct use of international treaties for the protection of human rights should be interpreted as an ‘achieved recognition’ of the specificity of the relations between athletes and sports authorities, which inevitably recall those between citizens and State. This parallelism has also been implicitly affirmed by the DFT, according to which ‘competitive sport is characterised by a very hierarchical structure at both national and international levels. Established on a vertical basis, the relations between athletes and the organisations that govern the different sporting disciplines are different from the horizontal relations between the parties to a contract’. 127 In turn, the CAS has affirmed that ‘there is an obvious parallel between a public authority and a sports federation, who make their rules and regulations and reach their decisions by a similar process and with similar impact on those affected’. 128
From another perspective, this process could be seen as a specific application of the principle established in the EU context according to which the horizontality of the principle of non-discrimination applies in private law relationships where one party is weaker than the other; it would be the cases issued in the field of employment law or concerning the area of fees for medical and hospital care. 129 In this context, the fundamental rights granted by international treaties for the protection of human rights should only be applied to the vertical relations between SOs’ members – the athletes – and SOs’ authorities.
It should be noted here that, despite all these efforts, the reference to human rights in the statutes of SOs is still quite generic today. The specific standards and legal principles to be applied on a case-by-case basis still remain extremely uncertain, making the ‘direct’ application of international treaties somewhat difficult in practice. Nevertheless, the emerging integration of the respect for human rights and fundamental freedoms within SOs’ statutory objectives would support at least the idea of human rights as an indirect legal source of the lex sportiva, reducing the opacity and the lack of clarity on the relations between human rights and sporting regulations. In addition, by including a binding reference to human rights for each national federation that is part of a specific ISF, the risk to athletes of being exposed to substantially different degrees of protection of their rights, or to episodes of discrimination in relation to equal opportunities in entering international sports competitions, should be significantly reduced. This would clearly indicate the existence of a ‘progressive’ process of integrating human rights into the lex sportiva, a process that would oblige the CAS to consider international human rights treaties, while leaving its role as a ‘supreme court’ of the transnational sports legal system intact.
Furthermore, it could be argued that the reference to human rights in the statutes of SOs would support the idea of ETOs, by binding SOs to comply with human rights standards regardless of whether the States where they are domiciled or carry their activities are not a member of the ECHR or that have not ratified the most important international treaties on human rights.
However, the question of providing and establishing effective remedies for an inconsistent application of international human rights norms and standards in disputes before the CAS still remains unresolved. In fact, the application of human rights norms and standards has been questionable at least in several cases. In the Semenya v IAAF & CAS case, 130 concerning the rules of athletics that set a limit for the natural levels of testosterone of female runners in order to be admitted into women's competition, 131 the CAS arbitration tribunal, while agreeing that the IAAF's policy was discriminatory against athletes with different sexual development such as Semenya, 132 accepted the IAAF's argument based on scientific studies according to which high testosterone levels in female athletes confer significant advantages in size, strength and power from puberty onwards, and therefore stated that the policy was ‘necessary, reasonable and proportionate’ to ensure fair competition in women's sport. 133 The ruling was strongly contested by the World Medical Association, according to which testosterone rules are ‘contrary to international medical ethics and human rights standards’. 134 The OHCHR, in turn, argued that ‘the implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non-discrimination more broadly’. 135
In May 2019, Semenya filed an appeal against the CAS decision with the DFT, which nevertheless upheld the decision of the arbitration tribunal. 136 Semenya brought her case before the ECtHR, which decided to grant the case priority under Rule 41 of the Rules of Court. 137 The case is pending; whatever judgement the Court may give, this story clearly shows the lack of adequate protection of the athletes’ human rights, capable of guaranteeing them access to an adequate and impartial judicial system. Indeed, as argued by the OHCHR, even if the ECtHR finds a violation of Semenya's fundamental rights, ‘proceedings before the ECtHR can often take a long time, during which an athlete's relatively short career may end [ …] thus insisting once again on the risk of inconsistencies between jurisdictions in terms of protection and remediation against human rights violations in sport’. 138
CONCLUSION: THE NEED TO REFORM CONTROL AND DISCIPLINARY PROCEDURES IN SPORTS LEGAL SYSTEM
The Semenya case seems to suggest that the solution to the gaps in human rights protection must be found, in part, in the processes of the organisation and selection of the arbitration panels. Indeed, the critical point seems to be the (lack of) efficiency and quickness in the protection of human rights in sports legal practice, rather than the recognition of their legal status or the possibility for members of SOs to bring their cases before the ECtHR.
On the basis of the analysis developed in the previous sections, it seems that the process of ‘juridification’ of human rights in the sporting context is making the protection of fundamental rights a structural element of the lex sportiva. In turn, the CAS has admitted that the jurisprudence of the ECtHR must be considered mandatory in the jurisdictions to which it applies and must in any case be regarded as indicative. In addition, this study has also emphasised the importance of considering the protection of human rights as a real juridical criterion rather than a mere political commitment. This has been confirmed by the ECtHR which, in declaring its jurisdiction over sports law, has stressed the importance of human rights as a legislative source on the basis of which the sporting regulations should be assessed. By virtue of the specific legal status of the IOC and the most important ISFs – non-profit organisations established under the provisions of Swiss law – and of the convergence between the Olympic philosophy and the human rights ideology, the transnational sports legal system therefore appears destined to be irremediably drawn into the orbit of the ECHR.
However, as in part emerged in the case law analysed in the previous discussion, the ECtHR judgments may be very successful in clarifying the general problems of human rights enforcement in the sporting context but may also be inconsistent in terms of effective protection and remediation for the specific violation on which the ruling is issued. In the Šimunić v Croatie case, for instance, the Court has in part clarified to what extent SOs can limit athletes’ freedom of expression, but on the other hand, the sentence was pronounced by the Court seven years after the sporting sanction and this delay de facto deprived the appellant of the opportunity to participate in the World Cup. 139 The solution to the gaps in human rights protection could be only partially found outside the sporting juridical system.
In this sense, in the case Ali Riza and Others v Turkey mentioned above, 140 the ECtHR implicitly recognised the sui generis nature of the arbitration mechanisms in some SOs and their often autonomous character, to indicate that the arbitration's decisions could be final and therefore not amenable to judicial review before any court. 141 However, the Court also held that their ‘sui generis nature […] is not sufficient to deprive the appellants of the protections of a fair trial guaranteed by Article 6 § 1 of the Convention’. 142 Therefore the ECtHR, while acknowledging the specificity and autonomy of the sporting judicial bodies, also affirmed their obligation to respect human rights and its jurisdiction on the lex sportiva, highlighting systematic and widespread deficiencies of the arbitration system and imposing extensive reforms on the dispute resolution system. 143
For its part, the EU, stressing on several occasions that ‘the basic procedures for guaranteeing the right of the defense should be established in accordance with the general principles of law’, has strongly supported the need to reform control and disciplinary procedures in the sports legal system. 144 The need to define an appropriate and independent legal framework for appeals in sports so as to guarantee the right of appeal to any national association, club, player, official or member directly affected by the decision is also supported almost unanimously by scholars, national codes, and NGOs. 145
In this context, some authors have pointed out that most of the Court arbitrators, the majority coming from the commercial law sector, 146 have a ‘general lack of human rights experience’. 147 This can inevitably lead to errors in the application of human rights standards, thereby confirming the need to also reform the procedures for appointing arbitrators in order to guarantee consistent and effective protection of athletes’ fundamental rights.
The aforementioned gaps in the protection of the rights of athletes in sport have led some authors to consider the need for global supervision, exercised in various forms and capable of monitoring respect for human rights within the Olympic system and the world of sport both at a professional and an amateur level. 148 The PACE, in turn, has strongly suggested the introduction of an adequate compliance monitoring and assessment system for the implementation of the human rights standards. 149 In fact, according to the Assembly, the sports world should ‘set up an independent sports ethics rating system, which should be created and operated by independent professional agencies with an impeccable international reputation, similar to existing environmental, social and governance rating agencies. In the same way as in the corporate world, introducing a rating system would enable Sports Organisations to prove and make visible their efforts towards enhanced governance and management strategies. A sports ethics rating system would be the first tool to enable the systematic assessment of any organisational culture change’. 150 Such an external and international control of the respect for human rights could in turn influence the evolution of the lex sportiva through a process very similar to the one started in the EU context regarding the social dialogue on sports policy. 151 On the other hand, it is rather uncertain to what extent this could guarantee access to adequate and effective remedies capable of providing full compensation for violations of the human rights of athletes.
A reform of the sporting justice system capable of guaranteeing athletes their right to remedy and of ensuring effective forms of redress thereby seems to be the prerequisite for turning the nexus between sport and human rights into a real link with legal effects. Achieving the legal capacity to protect the human rights of athletes is in fact a fundamental step to effectively promoting the Olympic ideals; an essential condition for guaranteeing the social function of sport as an ‘instrument of peace and sustainable development’, ‘vehicle of rights’ and ‘source of social inclusion’.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
