The Re-Emergence of the Athlete Activist

Sport and politics have always had an uneasy relationship. Whilst most sports bodies, including the International Olympic Committee (IOC), claim to be apolitical or politically neutral, sport is regarded by many as being inherently political. The relationship between sport and politics is particularly strained where athletes themselves engage in moments of activism. From Mexico 1968, with the Black Power salute of John Carlos and Tommie Smith, supported by Peter Norman, and Vera Čáslavská’s looking away whilst the Russian national anthem played, to the NFL in 2016, when footballer Colin Kaepernik began ‘taking the knee’ when the US national anthem was played before San Francisco 49ers games, athlete activism is rarely condoned and regularly condemned by sports administrators, fans and the media, who consider that sport and politics should not mix. Only with the benefit of hindsight are these activists celebrated for their bravery: Carlos and Smith were inducted into the USPOC Hall of Fame in 2019, Norman was awarded Olympic Order of Merit by the AOC in 2018, and Čáslavská became President of the Czech Olympic Committee and, in 1995, a member of the IOC.

At the 2019 Pan-American Games, US hammer thrower Gwen Berry and fencer Race Imboden respectively raised a fist and took the knee on the medal podium. The high-profile nature of their demonstrations, coupled with their potential to be participants at Tokyo 2020, caused IOC President Thomas Bach to state in his 2020 New Year’s Address that, ‘The Olympic Games … are not, and must never be, a platform to advance political or any other potentially divisive ends.’ Later in January 2020, the first guidance on the operation of Rule 50(2) of the Olympic Charter (Rule 50) was published. This stated unequivocally that all protests and/or demonstrations taking place during an event, in the Olympic Village or during the opening, closing and medal ceremonies were prohibited. In particular, ‘gestures of a political nature,’ including specifically hand gestures and kneeling, were identified as being in breach of Rule 50, which could lead to the disqualification of the athlete and the removal of their Olympic accreditation. Although this guidance was later modified, it set the scene for the IOC’s approach to athlete activism: it is not welcome at the Olympic Games. This blog analyses how Rule 50 was applied at Tokyo 2020, how it might be applied at Beijing 2022, and how an athlete could challenge a punishment imposed on them for a breach of Rule 50.

Rule 50 of the Olympic Charter and the restrictions on free speech

Rule 50(2) of the Olympic Charter states that:

No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.

Until the guidance issued in 2020, Rule 50 provided for an absolute prohibition on all demonstrations and political propaganda. The revised guidance, published in July 2021, contained significant relaxations by allowing Olympic participants to make ‘expressions’ (including gestures) in the playing arena before the start of the event. Demonstrations were still prohibited, as were expressions, demonstrations, and propaganda during medal ceremonies. This changed approach allowed athletes to, for example, take the knee on the pitch before the start of a football match. To comply with Rule 50, the ‘expression’ must:

(i) be consistent with the Fundamental Principles of Olympism;

(ii) not target, directly or indirectly, people, countries, organisations and/or their dignity;

(iii) not be disruptive [for example, it must not interfere with other athletes’ concentration on and/or preparation for the event, physically interfere with the introduction of another athlete, or risk causing, or actually cause, physical harm to persons or property); and

(iv) not be prohibited or otherwise limited by the rules of the relevant National Olympic Committee and/or the competition regulations of the relevant International Federation.

Further, any expression must also be compliant with the laws of the host nation.

The application of Rule 50 at Tokyo 2020

Tokyo 2020 saw more instances of athlete activism than at any other Olympic Games. The athletes supported a wide range of causes, using a variety of innovative gestures or expressions. These gestures can be divided into three categories:

Clear breach of Rule 50

Two cases stand out here. First, Algerian judoka Fethi Nourine withdrew from his event at Tokyo 2020 to avoid the risk of facing Israeli competitor Tohar Butbul in the second round. At his subsequent disciplinary hearing, Nourine was suspended from all International Judo Federation sanctioned events for 10 years, as his conduct was contrary to the Federation’s Statutes, its Code of Ethics, and Rule 50. Secondly, Chinese cyclists Bao Shanju and Zhong Tianshi were warned about their behaviour after wearing badges depicting Mao Zedong at their gold medal ceremony. Although a clear breach, the IOC accepted the Chinese Olympic Committee’s assurance that this would not be repeated so no further action was taken.

No breach of Rule 50

Athletes taking the knee, crossing their arms or displaying a cross in a circle, and wearing a rainbow band were all allowed by the IOC. Although Raven Saunders was initially investigated for crossing her arms in solidarity with all oppressed people: ‘[The cross is] the intersection of where all people who are oppressed meet,’ the investigation was discontinued with no further actions taken. These expressions of solidarity with social justice, inclusion and anti-discrimination movements no longer breach Rule 50, provided that they comply with the guidance criteria.

Potential beach of Rule 50

Between these two extremes was the conduct of the US men’s fencing team, who wore pink face masks in protest against the inclusion of Alen Hadzic in their team, as Hadzic was being investigated for committing sexual assault against three women. As a personalised protest, it could have been held to be a breach of Rule 50, whilst as a demonstration of general support of survivors of sex crimes, it would fall into the same category as taking the knee.

What might be allowed and what won’t be allowed at Beijing 2022

Expressions in support of social justice, inclusion, anti-discrimination and LGBTQI+ rights no longer appear to breach Rule 50. However, expressions targeted at a particular person or country, will not meet the second of the guidance criteria. Away from the Olympics, when the Munich authorities requested that the Allianz Stadium be lit as a rainbow for the Euro 2020 match between Germany v Hungary, UEFA refused as it perceived this as being a direct protest against Hungary’s anti-homosexuality laws, rather than providing generic support for the LGBTQI+ communities. Thus, anyone performing a gesture other than those listed above must ensure that they are complying with the guidance criteria.

Where Rule 50 could still come into play is where athlete activists seek to demonstrate their support for overtly political causes. The guidance states unequivocally that expressions must not be targeted at people, organisations, or countries. At Beijing 2022, any expression/gesture aimed at an individual politician, the Communist Party of China, or the Chinese state will remain a breach of Rule 50. This will prevent expressions by athletes on China’s domestic and foreign policy, including its treatment of and attitudes towards the Uyghur Muslims, Tibet, Hong Kong and Taiwan.

Challenging a disqualification for breaching Rule 50

If an athlete is suspected of breaching Rule 50, there are two potential sources of punishment. First, the IOC can investigate and prosecute the breach, with the power to disqualify and/or remove the accreditation of the offending athlete. Secondly, the athlete’s international federation can impose sanctions, as happened with Algerian judoka Fethi Nourine. From here, an appeal can be made to the Court of Arbitration for Sport (CAS).

It is unclear how CAS would approach a case brought before it on the grounds of a breach of Art.10 European Convention on Human Rights (ECHR). If it decides that freedom of speech is one of the ‘universal legal principles’ that it can apply, then it could decide on the merits of Rule 50 and whether it conforms with the Convention. Following Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10), as CAS is required to adhere to the requirements of Art. 6 ECHR, then by analogy, CAS could decide that Art. 10 claims are also within its jurisdiction and determine whether the protection of political neutrality in sport is a legitimate aim for restricting the operation of Art. 10. If it declines jurisdiction, or upholds the restrictions in Rule 50 as lawful, then an athlete has a further appeal to the Swiss Federal Tribunal. The limited grounds of review mean that an athlete will need to demonstrate that the decision of CAS is contrary to Swiss public policy, which here could be that Rule 50 offends the prohibition against discrimination on the grounds of their political opinions. The prohibition on discrimination has been interpreted extremely narrowly, and in Leeper the SFT held that there is no direct route of appeal from an international arbitration award on the grounds of a breach of the ECHR. Thus, there is no guarantee that an athlete will be able to challenge the legality through the usual lex sportiva and lex Olympica channels, though clarification could be sought on appeal to the European Court of Human Rights.

A more effective route of challenge could be to bring an action against Switzerland in the Swiss courts for failing to protect athletes from abuses of their Convention rights by a Swiss-based non-state actor: the IOC. Previous case law, notably Pechstein and Mutu, has demonstrated that ECHR rights apply to sports cases. To justify restricting an athlete’s rights under Art. 10 ECHR, three criteria must be addressed: is Rule 50 a restriction on freedom of speech; does the restriction serve a legitimate aim; and is it necessary and proportionate? Rule 50 is clearly a restriction on athletes’ freedom to express political opinions. The principle of legality is interpreted narrowly, restricting legitimate aims to: protecting the rights and reputations of others; national security; prevention of public disorder; and the protection of health and morals. The promotion of sporting neutrality, or apoliticality, is unlikely to be considered as necessary to the functioning of society as are the other accepted aims. Further, the principle of necessity requires any restriction to be specific, limited, proportionate, and not an unfettered exercise of discretion. Although Rule 50 is spatially and temporally restricted in its operation, the lack of specificity of its definition and transparency of its application runs the risk of it being found to be disproportionate. Save for the most extreme and targeted of demonstrations or expressions, it will be difficult to show that there is a compelling social need for Rule 50 that is necessary in a democratic society. The result of this brief analysis is, therefore, that a challenge to Rule 50 is at least justiciable. If the Swiss state is unable to justify why the IOC’s restrictions are legitimate, necessary and proportionate, the Swiss government could be found to have violated Art. 10 by its failure to protect athletes from the effects of Rule 50.

The future…

Although future editions of the Olympics are required to protect and respect human rights, para.27 of the Host City Contract Operational Requirements requires only that activities conducted in execution of the Host City Contract and linked to the organisation of the Olympic Games are covered. Further, only those human rights that are applicable in the host country are covered by this requirement, rather than requiring new rights to be protected by the host. The restrictions imposed on the ability of athletes to speak freely on political, religious, or racial issues remains subject to Rule 50. The IOC needs to be proactive if it wants to avoid challenges to the legality of Rule 50. It needs to ensure that it has a clear and understandable rationale for its existence, and that it is applied consistently and transparently to each incident. Although some restrictions on targeted expressions may be justifiable, the IOC needs to be aware that their necessity will be interpreted narrowly. CAS also needs to be aware of these potential developments and act proactively. If complex human rights issues are likely to come before its panels covering Convention rights such as these, then it will need to ensure that at least some of its pool of arbitrators are suitably qualified to hear these cases.