A week before the start of the Beijing Winter Olympics, members of its Organizing Committee were already warning participants (be they athletes or else) against ‘any behaviour or speech that is against the Olympic spirit’, immediately triggering a public backlash in the Western media. The Chinese government is, to say the least, not well-known for an accommodating stand towards freedom of expression (it scored 1 point out of 16 on freedom of expression in the Freedom in the World Report of 2021 by Freedom House) or freedom of the press, as illustrated by the recent crackdown on independent media in Hong-Kong. In this tense context, and with China’s treatment of the Uighurs on people’s mind, the Beijing Winter Olympics might constitute a boiling point for the ongoing debate on the freedom of expression (FoE) of athletes and fans participating in international sporting competitions.
In recent years, issues related to athlete activism and FoE have been high on the public and academic agenda (see here and here for recent webinars dedicated to them). Social media posts by athletes speaking out against police violence since the death of George Floyd are said to have “changed the world”. Athlete activism was also present and debated during the Tokyo 2020 Olympics (see here and here). In particular, the IOC’s infamous Rule 50 of the Olympic Charter, of which you will read a lot about in this symposium, has come under the scrutiny of the media and civil society, with many urging the IOC to amend it. For example, last summer, civil society organizations joined academics (including the authors of this blog) and athlete representatives in sending an open letter to the IOC and the International Paralympic Committee (IPC) calling upon them to revise their rules on freedom of expression and comply with human rights law.
This blog symposium kindly hosted by Verfassungsblog is an opportunity for a group of legal scholars (and a historian!) to reflect on these developments and their legal implications from a variety of perspectives and to bring this debate to a more general audience interested in issues related to human rights, constitutionalization of transnational legal processes and private governance. As an introduction to the contributions, our blog highlights a number of fundamental points which will be at the heart of this discussion.
The Olympic Movement as private regulator of freedom of expression
The focus of this symposium will be on the transnational private regulation of speech by Sport Governing Bodies (SGBs), and more specifically members of the Olympic Movement. These SGBs are almost all established as private associations and often based in Switzerland. They regulate FoE primarily through networks of contracts involving their members and the participants to their competition. In this regard, they are akin to other private regulators of speech, the most well-known being probably social media companies such as Twitter and Facebook, which are also increasingly scrutinized and criticized (see here and here, but the academic literature is fast-growing).
SGBs raise concerns similar to those discussed in the context of social media companies: When should they intervene to restrict FoE during international competitions? When are private restrictions of FoE legal? And, who is competent to decide whether they are? In principle, athletes and fans consent to the restrictions imposed on them through the signing of an entry form to a competition or the buying of a ticket giving them access to the stadiums. So, can it be that they freely consent to renouncing to exercise their FoE? If one wishes to take part in global sporting events as spectator or competitor, there is no alternative to consenting to contractually imposed restrictions, thus amounting to forced consent. So much was recognized by the ECtHR in its Mutu/Pechstein ruling of 2018 with regard to the forced consent of athletes to CAS arbitration clauses included in the entry form of an international sporting competition. We are dealing with private rules which, like sport’s private judicial system, will need to be grounded in post-consensual foundations.
What is particularly relevant to readers unfamiliar with the sporting context, is that these highly effective transnational restrictions to FoE are the product of (formally) private power. This raises, as will be evident in many of the blogs featured in this symposium, paradoxes (such as whether a private association can claim to act in the public interest when restricting the FoE of its members) and necessitates challenging some fundamental legal distinctions (like the public/private one) and entrenched doctrines when considering whether these regulations are compatible with human rights.
Debating the legality of the SGBs’ restrictions on freedom of expression
Many of the contributions of the symposium are reflecting on the compatibility of the restrictions on FoE imposed by SGBs, and in particular the IOC’s Rule 50, with international human rights law. This leads to discussions related to the legitimacy of the objectives pursued by SGBs when they restrict FoE. Is protecting the neutrality of international sport a legitimate objective? Or, is international sports not already political through and through? Can restrictions be justified by other potentially legitimate objectives, such as the protection of public order? These questions will be tackled (differently) by many of our contributors.
Some are also wondering about the alternatives to the existing rules. Here the question is not so much whether SGBs should regulate FoE, but how. Most of the blogs included in this symposium argue that the current version of Rule 50 (and its Guidelines) fails to comply with the necessity requirement enshrined in international human rights law. In other words, it seems possible to devise a less restrictive mechanism to achieve the objectives pursued by the IOC with Rule 50 and concrete proposals are put forward by the authors. Accordingly, our contributors seem to be willing to make some room for the IOC (and other SGBs) to regulate FoE, but they believe such regulations should not go unchecked and it will be the responsibility of the Court of Arbitration for Sport (CAS) and ultimately the Swiss Federal Tribunal (SFT) and the European Court of Human Rights (ECtHR) to ensure that any restriction imposed is not unreasonable or disproportionate.
This leads us back to the fact that the Beijing Winter Olympics have the potential to be the theatre of strong political statements and demonstrations by athletes (fans are not allowed to travel to Beijing due to Covid-19), in particular directed against certain policies of the Chinese government. Such a situation could crystallize the issue into a formal case involving the exclusion of an athlete and leading to an appeal to the CAS Ad Hoc Division for the Beijing Olympics against the decision of the IOC or the International Federation involved. If defeated, such an appeal could then likely lead to a challenge against the CAS award before the SFT and (at a much later point) at the ECtHR, bringing to a legal climax the question of the human rights compatibility of the policing of FoE by the Olympic Movement. This is legal science-fiction but, based on the contributions included in this blog symposium, it is one that is grounded in the expectations of many scholars in the field. Finally, this exercise points also to another aspect of the discussion: what if we wish the IOC and other SGBs to be instead more interventionists on matters related to FoE?
Turning the Olympic Movement into a transnational force for freedom of expression
As some of the readers will know, the IOC (or FIFA for that matter) imposes rather detailed conditions for the organization and delivery of the Olympics when it confers the Olympics to a particular city. This includes requiring changes to local laws to accommodate in particular the interests of its commercial sponsors (see here and here). What if the IOC would use its power over the host city and the host country to defend and protect FoE during the time of the Olympics and on the ephemeral “Olympic territory”? The irony is that the IOC’s private power, which as discussed above is potentially threatening the FoE of athletes and fans, could then be harnessed to defend their FoE against the restrictive policies of the host states. To some extent, this is what happened during the 2018 World Cup in Russia, when FIFA intervened to protect the rights of journalists and created a complaints mechanism for human rights defenders and journalists.
Clearly, we are dealing with a complex subject, which cannot be captured through a simple black and white lens. Undoubtedly, not all regulations of FoE produced by SGBs will be incompatible with human rights and, in general, unwelcome. In fact, few would challenge the right (and even the duty) of SGBs to police hate speech during their competitions. Moreover, there are certainly decent arguments to support some restrictions to the political activism of athletes, for example when it threatens public safety or order. However, this entails also that such regulations and their application should undergo rigorous checks by independent courts and be developed by bodies responsive to those primarily affected by them (i.e. the athletes and the fans), which currently is not a given in the Olympic Movement. Furthermore, in the future, the IOC could be turned into a promoter and enforcer of FoE and the Olympics could become a transnational space/time where it temporally and locally thrives. We are very far from this reality with Beijing 2022, but this symposium might contribute to bringing us closer to it.