The relationship between sports and neutrality belongs to the most hotly debated topics in international sports law. This blog post illustrates the application of the neutrality principle in practice and argues that the athletes’ freedom of expression in sports is emerging as a ‘concession’ rather than as a ‘right’, suggesting that a reform of the regulations imposed by the Olympic Movement is urgently needed.
The principle of political neutrality: universality and autonomy
The political neutrality of sport is a ‘universal fundamental ethical principle’ of the Olympic Movement, enshrined in the International Olympic Committee (IOC) Code of Ethics together with the ‘principle of the universality’ (Article 1.2). It is grounded in the universal nature of the international sporting organisations (ISOs) which tend to represent themselves as ‘Great Universals’, vehicles for universal values higher and more general than those represented by other international organizations or States.
At the same time, basic tenets of neutrality are prohibition of participation in a ‘conflict’ and the maintenance of an attitude of impartiality toward the ‘warring parties’. Under international law, neutrality traditionally entails the right of integrity; ‘belligerents’ may not aggress a neutral actor, and they should avoid interfering in their internal and external affairs. In this sense, neutrality of sport could be interpreted as an instrumental principle, a strategic and political tool to protect the ISOs’ moral force and their autonomy, by guaranteeing non-intervention into the realm of national authorities.
This interpretation is in part suggested by the analysis of the relevant ISOs’ rules. In the IOC Code of ethics, the political neutrality principle is followed by the duty to maintain ‘harmonious relations with state authorities, while respecting the principle of autonomy as set out in the Olympic Charter (Article 1.3). This relation is more evident, for instance, with regard to the Fédération Internationale de l’Automobile (FIA). According to Article 3 of the FIA Code of Ethics, ‘the FIA Parties and Third Parties shall work to maintain harmonious relations with national authorities, in accordance with the principle of universality and of political neutrality of the FIA’.
Therefore, in order to avoid being drawn into political disputes, ISOs have strictly limited the freedom of expression of their members. The recent history is replete with examples showing how some athletes can ‘affect harmonious relations with national authorities’ by using the spotlight that sport provides to them to make political expressions. Furthermore, as underlined by several authors, political or ideological commitments by members of ISOs could be a casus belli of undue influence by national authorities and political actors, which have historically tried to use sport for the benefit of the State and its ideology.
Rule 50 of the Olympic Charter: ‘speech is silver, but silence is golden’
The most relevant application of the neutrality principle is Rule 50 of the Olympic Charter which has been essentially reproduced by the most important ISOs in their Charters. Pursuant to Rule 50 ‘no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas’.
On the basis of this ‘golden rule’, while officially promoting the respect of human dignity, the IOC sanctioned harshly the famous ‘black power salute’ of the Olympic athletes Tommie Smith, John Carlos and Peter Norman at the 1968 Mexico City Olympic Games. Whatever one’s opinion on this case, it was clear that this kind of protests could affect ‘harmonious relations with some national authorities’ involved in the cold war. Pursuant to the same ratio, the prohibition to show symbols in support of LGBTQ’s rights was particularly underlined by the sporting authorities during the Sochi Winter Olympics, since it could be perceived as a protest against the law on homosexual propaganda introduced by the Russian government in 2013. Recently, UEFA declined a request to allow Munich’s Allianz Arena to be illuminated in rainbow colours during Germany’s Euro 2020 match against Hungary, saying it would represent a political statement given the context. It considered that it would have been clearly aimed against the Hungarian national parliament’s position on LGBTQ rights. Instead, UEFA proposed alternative dates for the rainbow illumination of the Munich stadium, suggesting that it is the context of a statement and its potential immediate effect on the relations with national authorities, not simply its political nature, which requires limitations to the freedom of expression. This is also reflected in the tolerance for the anti-racism protests following the death of George Floyd, which represents the first breach of the ‘golden rule’ of political neutrality accepted by several sporting authorities. These protests have been allowed, for instance, by the European ISOs, but they are still rejected by the IOC. In short, for opportunistic reasons, UEFA was fine with protesting American police brutality, but much less inclined to allow messages in support of LGTBQ rights targeting the Hungarian government.
In recent years, sport neutrality has emerged as an instrumental principle that is not applied in a uniform manner but rather depending on the political sensitivity of each sporting event.
The inconsistency of neutrality in sport: freedom of expression as ‘concession’ rather than ‘right’
The arbitrary application of the neutrality principle by ISOs, illustrated in the previous discussion, affects the consistency of the claim to neutrality in sport. Political conditions and considerations of expediency have actually produced an inconsistent treatment of very similar situations. Therefore, the idea that neutrality is not (and cannot be) applicable in sport, and that in practice ISOs and politics cannot be separated, seems to be confirmed.
ISOs have actually taken position in the past in relation to political issues, as in the case of South Africa which was expelled in 1970 from international sports by 20 ISOs because of the apartheid regime. Also in the aforementioned Sochi Winter Olympics and the Euro 2020 game in Munich, sporting authorities have indirectly taken a position, underlining the ‘goodness’ of the cause and their important commitment in the fight against racism, homophobia, sexism, and all forms of discrimination. And indeed, the Olympic Mouvement is not neutral ideologically speaking as it is driven by Olympism, which is often associated with humanism.
In this context, the exercise of their freedom of expression by the ISOs’ members seems to be more of a ‘concession’ rather than a ‘right’. The possibility to make political expressions is admitted (or rejected) by the sporting authorities on a case by case assessment. However, general political conditions, and consistency of the message with the ISOs’ fundamental interests (as autonomy or promotion of Olympic ideals), appear to be decisive criteria.
This is indirectly confirmed by the Court of Arbitration for Sport (CAS) which has traditionally recognised the right of the ISOs to establish ‘codes of conduct’ and policies, such as Rule 50, in order to regulate their members’ behaviours depending on their potential impact on public opinion. In the case George Yerolimpos v. World Karate Federation (WKF), in which freedom of speech was expressly recognised for the first time within ISOs, the CAS emphasized two important limitations to this right: opinions must be lawful, and ISOs’ members must demonstrate self-restraint in the exercise of their right. In this case, the exercise of the right of freedom of expression was assessed (and sanctioned) by taking into consideration its effects on public opinion, and in particular on the WKF’s image worldwide.
In light of the above, ISOs have a large margin of appreciation in limiting freedom of expression, which varies according to general political considerations and potential effects on public opinion. Nevertheless, this represents a violation of the traditional criteria and conditions for restricting freedom of expression on the basis of a neutrality policy, which should be appreciated in relation to the general requirement of consistency. Furthermore, in this perspective, it could be argued that the large power of ISOs to protect its fundamental interests could potentially affect the freedom of speech also outside the sporting arena.
Regulating speech outside the sporting arena: an emerging issue
Freedom of speech outside the sporting arena is theoretically not covered by Rule 50 and equivalent rules of ISOs. In the Sochi Winter Olympics case, for instance, while reaffirming the ban of any political demonstration during the Games, the IOC President declared that ‘it is also clear that the athletes enjoy the right of freedom of speech, so if they want to make a political statement during a press conference they are absolutely free to do so’. This is reinforced by the recently published IOC Athletes’ Commission guidelines, according to which Athletes should ‘have the opportunity to express their opinions, including during press conferences and interviews, that is in the mixed zones, in the International Broadcasting Centre (IBC) or in the Main Media Centre (MMC); at team meetings; on digital or traditional media, or on other platforms’.
While sporting events as such enjoy wide media coverage, the public impact of athletes’ opinions is much weaker when articulated in a mixed zone or other platforms. However, the important mediatisation of the athletes, and the information provided through social media, could make the differentiation between sporting arena and mixed zones or other platforms almost ineffective from the point of view of the impact of athletes’ statements on public opinion. Today sport’s political reach exceeds the traditional limits of the sporting arena; messages on current political issues, such as LGTBQ rights or the Catalonian independence referendum, made in mixed zones and disseminated by social media, could transform an international sporting event into a political battlefield rather than the peaceful meeting of the people of the world advertised by the Olympic Movement, and threaten the harmonious relations of the ISOs with national authorities.
In these cases, the large power of ISOs to limit the exercise of freedom of expression could be used to protect the autonomy and social function of sport. In practice, over the last years, some sporting authorities have moved strongly against those political messages outside of the playing field which they have regarded as potentially debasing the image of sport, inciting violence and disorder, and giving rise to protests by supporters. In some cases, these restrictions amount to evident violations of athletes and officials’ freedom of expression as the European Court of Human Rights (ECtHR) recently found in the cases Sedat Doğan v. Turkey, Naki and Amed Sportif Faaliyetler Kulübü Derneği v. Turkey and Ibrahim Tokmak v. Turkey. In other cases, the messages can effectively be interpreted as inciting violence, as in the Jibril Rajoub v. FIFA case, in which the President of the Palestine Football Association was sanctioned by FIFA for inciting a blatant protest that involved in particular the burning of a Messi jersey during a match of the Israeli national team in Jerusalem.
Political messages by athletes and officials can clearly affect the universalist and pacifying function of sport, undermining harmonious relations with national authorities. However, handling athletes’ actions and statements on a case-by-case basis, by following an inconsistent neutrality policy, could hardly be qualified as a valid restriction. A reform or a specific implementation of the athletes’ public statements regulation, one that is able to reduce the arbitrary role played by general and opportunist political considerations, is urgently needed. This is a very complex and sensitive challenge, in particular with respect to speech outside the sporting arena. Nevertheless, reaching the goal of protecting the fundamental interest of ISOs and guaranteeing at the same time the human rights of athletes and officials is a fundamental step towards effectively promoting Olympic ideals; an essential condition for assuring the social function of sport as an instrument of peace and sustainable development, as a vehicle of rights and a source of social inclusion.