WISLaw Blog Symposium – Freedom of Expression in Article 10 of the ECHR and Rule 50 of the IOC Charter: Are these polar opposites? – By Nuray Ekşi

June 29, 2021

Editor’s note: Prof. Dr. Ekşi is a full-time lecturer and chair of Department of Private International Law at Özyeğin University Faculty of Law. Prof. Ekşi is the founder and also editor in chief of the Istanbul Journal of Sports Law which has been in publication since 2019.

While Article 10 of the European Convention on Human Rights (‘ECHR’) secures the right to freedom of expression, Rule 50 of the Olympic Charter of 17 July 2020 (‘Olympic Charter’) restricts this freedom. Following the judgments of the European Court of Human Rights (‘ECtHR’) relating to sports, national and international sports federations have incorporated human rights-related provisions into their statutes and regulations. They also emphasized respect for human rights. For example, Article 3 of the Fédération Internationale de Football Association (‘FIFA’) Statutes, September 2020 edition, provides that “FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”. Likewise, the Fundamental Principles of Olympism which are listed after the Preamble of the of the Olympic Charter 2020 also contains human rights related provisions. Paragraph 4 of Fundamental Principles of Olympism provides that the practice of sport is a human right. Paragraph 6 forbids discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the International Olympic Committee (‘IOC’) inserted human rights obligations in the 2024 and 2028 Host City Contract.[1] The IOC Athletes’ Rights and Responsibilities Declaration even goes further and aspires to promote the ability and opportunity of athletes to practise sport and compete without being subject to discrimination. Fair and equal gender representation, privacy including protection of personal information, freedom of expression, due process including the right to a fair hearing within a reasonable time by an independent and impartial panel, the right to request a public hearing and the right to an effective remedy are the other human rights and principles stated in the IOC Athletes’ Rights and Responsibilities Declaration. Despite sports federations’ clear commitment to the protection of human rights, it is arguable that their statutes and regulations contain restrictions on athletes and sports governing bodies exercising their human rights during competitions or in the field. In this regard, particular attention should be given to the right to freedom of expression on which certain restrictions are imposed by the federations even if it done with good intentions and with the aim of raising awareness.

The provisions prohibiting propaganda and political demonstrations are enshrined in the statutes and regulations of international and national federations. For example, International Football Association Board (‘IFAB’) Laws of the Game 2020/2021 states that players must not reveal undergarments that display any political, religious, personal slogans, statements or images, or advertising other than the manufacturer’s logo.[2] As with any offence, the player and/or the team will be sanctioned by the competition organiser, national football association or by FIFA. On the one hand, freedom of expression is listed among the rights of athletes in Paragraph 11 of the IOC Athletes’ Rights and Responsibilities Declaration[3], on the other hand, Rule 50(2) of the Olympic Charter restricts demonstrations or political, religious or racial propaganda, which may adversely affect freedom of expression. The propaganda ban was first introduced by the 1967 Olympic Charter.[4] This ban has been retained in later versions with minor modifications. Under the title of “propaganda advertising, demonstration”, Rule 50(2) of the current version of the Olympic Charter[5] provides that “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”. The aim of Rule 50(2) of the Olympic Charter in prohibiting political statements is to maintain the neutrality of sport.[6] Rule 50(2) is only applicable in Olympic venues, namely on the field of play, in the Olympic Village, during Olympic medal ceremonies or during the opening, closing and other official ceremonies.[7] Displaying any political messaging, including signs or armbands, gestures of a political nature, like a hand gesture or kneeling, and refusal to follow the ceremonies protocol are some examples of what would constitute a protest, as opposed to expressing views non-exhaustingly indicated in Rule 50 Guidelines Developed by the IOC Athletes’ Commission.[8]

A disciplinary sanction can be applied against an athlete who has breached Rule 50(2) of the Olympic Charter. This sanction can be reviewed by the ad hoc division of the Court of Arbitration for Sport (‘CAS’) established for the Olympic Games.[9] An arbitral award of CAS can be challenged before the Swiss Federal Court on the grounds listed in Article 190 of the Swiss Private International Law including public policy.[10] Since freedom of expression is among the fundamental human rights guaranteed by Article 10 of the European Convention on Human Rights, the Swiss Federal Tribunal may rule that a CAS arbitral award is incompatible with public policy. The limitations set out in the statutes and regulations of the national and international sports federations pertaining to the freedom of expression are aimed to protect the neutrality of sport and separate it from political, religious or any other type of interference; however, one cannot exclude potential challenges to be filed against Switzerland before the ECtHR. As in the Pechstein and Mutu cases, the sports community, including CAS, anxiously awaited what the ECtHR would decide. The judgements of the ECtHR have been taken into consideration and respect for human rights has been integrated in the statutes of some SGBs, including the IOC Charter.

Although the IOC is established as an association under the Swiss Association Law, the rules of its Charter may adversely affect the enjoyment of certain human rights. Freedom of expression is enshrined not only in Article 10 of the ECHR but also in other international human rights legislative instruments, including Article 19 of the Universal Declaration of Human Rights of 1948, Article 11 of the EU Charter of Fundamental Rights, Article 17(1) of Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, Article 19 of the International Covenant on Civil and Political Rights. Article 10 of the ECHR covers not only the disclosure of political ideas, but also the freedom to disclose any literary, commercial and other ideas. The freedom of expression protected under Article 10 of the ECHR is not limited to words, written or spoken, but it extends to pictures and images including tv or radio broadcasts, films as well as electronic information etc.[11] The right to freedom of expression can be restricted in certain circumstances provided in the provisions of the human rights instruments. Although these instruments are hard law for the Member States, statutes and regulations of the international or national SGBs contain restrictions as to the right to freedom of expression. International or national SGBs are mostly established as associations.[12] The problem so far has arisen as to how national or international sports federations can restrict the rights and freedoms guaranteed by the national constitutions and international conventions.

Article 10 of the ECHR can also be applied in the field of sports because athletes can address a wide public during the competitions and may protest human rights violations or political events in their own country or elsewhere. Human rights violations including the right to freedom of expression may also occur in countries where the Olympic Games are held.[13] Generally, the IOC and its international federations take the necessary measures to ensure that athletes do not make political statements during competition. In fact, in 1967 famous boxer Mohammad Ali refused to fight in Vietnam to protest racial segregation.[14] During the 1968 Mexico City Summer Olympics, after winning the gold and the bronze medal in the 200-meter sprint, American athletes Tommie Smith and John Carlos stepped onto the podium barefoot, shared a pair of black gloves and raised their fists in the air when the national anthem played to protest against black poverty and lynching.[15] The IOC reacted swiftly and harshly to this 1968 black power salute, immediately suspending the athletes.[16] The history of sports has recorded various examples of athletes who were sanctioned or ostracized because they had exercised their freedom of expression. Colin Kaepernick and Eric Reid kneeled or sat on the bench while the national anthem was played as a protest against racial discrimination and police brutality against people of colour in the United States.[17] Both players were not contracted in the NFLin the subsequent season.[18] Czech national gymnast Vera Caslayska’s career ended as she protested against Soviet hegemony in her country during a medal ceremony in Mexico in 1968.[19]John Carlos and Tommie Smith were suspended immediately from the United States Olympic Team as a result of the black power salute. FIFA fined the England Football Association because its members displayed poppies, a symbol of National Armistice Day, during the World Cup qualifier against Scotland. Likewise, Scottish and Irish clubs were fined for flying the Palestinian flag in stadiums.[20] “During the Sochi Games, the IOC even reprimanded athletes for placing small stickers on their helmets in memory of deceased freestyle skier Sarah Burke, calling the gesture political”.[21]

Sometimes an athlete makes futile efforts to obtain permission to protest the situation in their countries. The request by Ukrainian athletes to wear a black headband to remember those who died during the political demonstrations in Kiev was rejected by the IOC as political propaganda. However, protests or demonstrations by athletes may not always contain political content. For example, Cheryl Maas, a Dutch and gay skier, wanted to wear rainbow gloves to protest Russia’s anti-gay legislation, but he was not allowed.  

As there is no judgment of the ECtHR to confirm whether or not Rule 50(2) of the Olympic Charter complies with Article 10 of the ECHR, various arguments have been put forward by academics. Dhonchak thinks the rule set out in Rule 50(2) of the Olympic Charter must be struck down at the earliest.[22] However, Faut puts forward two solutions which could increase compliance with Article 10 of the ECHR. “The first one lies in more transparent and less excessive sanction mechanisms. A second option would be a laxer prohibition on political statements in the Olympic Charter, covering a smaller range of incidents”.[23] Anmol believes that IOC could also re-assess its position and come-up with fresh guidelines that uphold a balanced political speech before the Tokyo Olympics 2021.[24] For example, the IOC could allow the disciplinary body to assess the speech by examining its content and core intentions in accordance with the Fundamental Principles of Olympism set out in the Olympic Charter. Shahlaei states that “perhaps the solution lies somewhere in the middle. To maintain their general political objectivity, sports organizations could continue to prohibit purely domestic political gestures, such as flying a banner in support of a preferred presidential candidate. At the same time, they could allow athletes to express support for human rights, such as racial equality”.[25]

However, it should be noted that Rule 50 of the Olympic Charter in no way eliminates freedom of expression. In accordance with the Rule 50 Guidelines developed by the IOC Athletes’ Commission, outside the Olympic venues athletes have the opportunity to express their opinions during press conferences and interviews or at team meetings or on digital or traditional media, or on other platforms. Any protest or demonstration outside Olympic venues must obviously comply with local legislation wherever local law prohibits such actions.[26] Nonetheless, this discussion will surely continue until the ECtHR will shed light on the application of Article 10 of the ECHR to Rule 50(2) of the Olympic Charter.

[1] Although certain steps have been taken on human rights by IOC since Sochi Olympics, they are found by Grell unsatisfactory and creates uncertainty in several ways. For more information see Tomáš GRELL, The International Olympic Committee and Human Rights Reforms: Game Changer or Mere Window Dressing?, 17(2018) International Sports Law Journal, p. 161 et seq.

[2] IFAB Laws of the Game 2020/2021, The Players’ Equipment, p. 60: https://resources.fifa.com/image/upload/ifab-laws-of-the-game-2020-21.pdf?cloudid=d6g1medsi8jrrd3e4imp (accessed 17.5.2021).

[3] https://olympics.com/athlete365/who-we-are/athletes-declaration/(accessed 18.4.2021).

[4] FAUT, 254-255. For the text of the Olympic Charter of 1967 see http://www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1967-Olympic_Charter.pdf. (accessed 20.4.2021).

[5] Olympic Charter in force as from 17 July 2020 © International Olympic Committee, Lausanne, 2020.

[6] Rule 50 Guidelines Developed by the IOC Athletes’ Commission: http://stillmedab.olympic.org/media/Document%20Library/OlympicOrg/News/2020/01/Rule-50-Guidelines-Tokyo-2020.pdf

[7] Rule 50 Guidelines Developed by the IOC Athletes’ Commission.

[8] Rule 50 Guidelines Developed by the IOC Athletes’ Commission: http://stillmedab.olympic.org/media/Document%20Library/OlympicOrg/News/2020/01/Rule-50-Guidelines-Tokyo-2020.pdf (accessed 17.4.2021).

[9] Johan LINDHOLM, From Carlos to Kaepernick and beyond: Athletes’ Right to Freedom of Expression, 17(2017)1-3 International Sports Law Journal, p. 2.

[10] LINDHOLM, 2.

[11] Frédérique FAUT, The Prohibition of Political Statements by Athletes and its Consistency with Article 10 of the European Convention on Human Rights: Speech is Silver, Silence is Gold?, 14(2014) International Sports Law Journal, p. 257; Monica MACOVEI, Freedom of Expression Human Rights Handbooks, No. 2 A guide to the Implementation of Article 10 of the European Convention on Human Rights,2nd edition, January 2004, p. 7.

[12] For the criticisms about the extraordinary autonomy that sports governing bodies enjoy under Swiss law see Margareta BADDELEY, The Extraordinary Autonomy of Sports Bodies under Swiss Law: Lesson to be Drawn, 20(2020) International Sports Law Journal, p. 3-17.

[13] For the human rights violations occurred in China during Beijing Olympic Games see Bruce KIDD, Human Rights and Olympic Movement after Beijing, 13(2010) Sports in Society, p. 901-909.

[14] Faraz SHAHLAEI, When Sports Stand Against Human Rights: Regulating Restrictions on Athlete Speech in the Global Sports Arena, 38(2017)1 Loyola of Los Angeles Entertainment Law Review, p.100.

[15] ANMOL, 67; SHAHLAEI, 101.

[16] SHAHLAEI, 101.

[17] ANMOL, 66; Brendan SCHWAB, Celebrate Humanity: Reconciling Sport and Human Rights through Athlete Activism, 28(2018)1 Journal of Legal Aspects of Sport, p. 170-171.

[18] SCHWAB, 171 footnote 2.

[19] SCHWAB, 171 footnote 6; ANMOL, 66.

[20] SHAHLAEI, 108.

[21] SHAHLAEI, 108-109.

[22] Dhananjay DHONCHAK, Rule 50 of the Olympic Charter-Protesting Racial Inequality, 04.09.20: https://opiniojuris.org/2020/09/04/rule-50-of-the-olympic-charter-protesting-racial-inequality  (accessed 17.4.2021).

[23] FAUT, 262.

[24] Jain ANMOL, Political Speech in Sports: A Case for Non-Prohibition, 2(2020)1 Journal for Sports Law, Policy and Governance, p. 73.

[25] SHAHLAEI, 116.

[26] Rule 50 Guidelines Developed by the IOC Athletes’ Commission.