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By Luka Krsljanin (Blackstone Chambers), in collaboration with Ted Powell and Thomas Barnard (Irwin Mitchell)

Sport cuts across race, religion, age, gender, politics and more. Indeed, the unifying nature of sport is one of its greatest attributes, and one consequence of this is that professional athletes have a diverse and far-reaching platform that can be used to have a substantial positive impact on society.

Using professional sport as a platform to fight for equality and raise awareness for social injustice is not something new: perhaps one of the most iconic images of protest against racial discrimination in the 20th century remains Tommie Smith and John Carlos’ controversial raising of a black-gloved fist whilst on the winners’ podium of the 1968 Olympic Games. However, more recently, we have seen a growing number of professional athletes using their profile to raise awareness and initiate change by actions on or off the pitch, including by embracing new forms of social media, and other platforms, to spread their desired messages.

The EURO 2020 tournament provides a clear example of this. The England team, along with others, took the knee before games to highlight racial injustice. This on-field action was then followed by various players commenting on racial issues, and the Government’s response to it, through their social medial platforms. In addition, Harry Kane and Manuel Neuer both wore rainbow armbands in the England v Germany fixture as a display of LGBTQ+ solidarity.

More controversially, UEFA prevented Germany from lighting the Allianz Arena in rainbow colours ahead of their game with Hungary, as this was seen to be based on political grievances. In that very game, after scoring the decisive 84th minute goal, German player Leon Goretzka celebrated by making a heart symbol with his hands, directly in front of the Hungarian fans, a move interpreted by many as a pointed response to UEFA’s decision. Further examples appeared throughout the tournament: Marko Arnautovic was accused of using anti-Albanian insults in a goal celebration and Ukraine received criticism from Russia for including the Crimea in a map detailed on their playing shirts.

It seems inevitable that protests and political statements will be made by athletes in the 2020 Olympics and certain athletes have already confirmed they’ll be taking a knee in Tokyo. We’ve discussed the legal and commercial rights and duties that athletes should consider before taking action.

 

The Olympic Charter

The Rules

Rule 50.2 of the Olympic Charter[1] (the “Charter”) states that “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas”. In light of this, it is clear that the starting position is that political protests will breach the Charter and, as a result, athletes should carefully consider their rights and duties before taking any such action.

Importantly, the International Olympic Committee (the “IOC”) recently relaxed the rules on protests at the Olympics. In summary, the Rule 50.2 Guidelines for the 2020 Olympics[2] (the “Guidelines”) now allow athletes to “express their views” in interviews with the press, through social media channels, and on the field of play prior to the start of competition (for example, during the introduction of an athlete or team). This is a marked change in the approach of the IOC, who have previously taken a firm stance against any kind of protest or demonstration being made at the Olympics. The change was made following a quantitative study, implemented by the IOC Athletes’ Commission (“IOC AC”) commenced in June 2020, which included a survey of some 3,547 athletes and recommendations from leading sports and human rights lawyers.[3] The study itself appears to have been commenced following a 10 June 2020 resolution by the IOC Executive Board, condemning racism and other forms of discrimination, in response to the widespread international protests triggered by the killing of George Floyd.[4]

Importantly, informing and underpinning the current Guidelines is an analysis consistent with the essential approach to the right to freedom of expression enshrined in the European Convention on Human Rights (Article 10). The IOC AC summarised its understanding of the legal position in the following terms:

“I. While freedom of speech and expression is a universally recognised fundamental human right, it is not absolute. Such a right comes with duties and responsibilities.

II. Freedom of speech and freedom of expression may be restricted under a very limited set of conditions, the assessment of which is delicate and varies depending on the circumstances.”

By invoking the recognition of proportionate restriction on freedom of expression, the IOC AC signals that in certain circumstances protests will remain restricted. Rule 50.2 makes clear, as detailed below, that certain aspects or locations of the Olympic games remain sacrosanct.

Athletes considering a political protest at the 2020 Olympics should consider the Guidelines in detail and ensure that the action they are planning will be made through a permitted method. The Guidelines expressly state that “expressing views outside Olympic sites/venues and before and/or after the Olympic games is not subject to these guidelines”. Further, there seems to be a reasonable degree of freedom in relation to views expressed on social media and in interviews, which could make these platforms an attractive option for athletes looking to make a political statement whilst minimising their risk of breaching the Charter.

In contrast, the IOC have set out specific restrictions on protests being made on the field of play. We have discussed these in detail below, and athletes should pay careful attention to these if planning on expressing their views before, during or after their event.

Restrictions on protests on the field of play, at official ceremonies and on the podium

The Guidelines permit athletes to carry out protests “on the field of play prior to the start of competition”. The Guidelines give some examples, and note that protests made “after leaving the “call room… or during the introduction of the individual athlete or team” should be acceptable, provided they comply with the further restrictions discussed in detail below.

Notably, however, the Guidelines follow findings from the IOC AC that a substantial majority of surveyed athletes considered that it is not appropriate to demonstrate or express their views on the field of play (70% of respondents), at official ceremonies (70% of respondents) or on the podium (67% of respondents). These moments, which are ordinarily televised live and represent pivotal moments in the Olympic games, continue to be subject to restriction.

It can be inferred from the Guidelines that protests during a ceremony, during an event, or during the presentation ceremony, will be prohibited and are likely to be in breach of Rule 50.2. This could mean that the statement of wearing an armband during an event, as seen in the 2020 EURO competition in relation to LGBTQ+ solidarity, could breach Rule 50.2.

In addition, the Guidelines set out specific restrictions on protests being made on field. They state that the protests must:

  • be consistent with the Fundamental Principles of Olympism (the “Principles”);
  • not be targeted, directly or indirectly, against people, countries, organisations and/or their dignity;
  • not be disruptive; and
  • not be prohibited or otherwise limited by the rules of the relevant National Olympic Committee (NOC) and/or the competition regulations of the relevant International Federation (IF).

There are some key points to take from these restrictions. Firstly, athletes should consider the Principles and ensure their protest is consistent with them. The Principles include values such as “social responsibility”, “respect of universal fundamental ethical principles”, “harmonious development of human kind” and “human dignity”. As a result, it is likely that protests in relation to racial and sexual discrimination (such as those seen across the EURO 2020 tournament) will be deemed as consistent with the Principles, as these causes are rooted in widely accepted human rights.

Athletes that wish to protest against causes that are not as clearly based on widely accepted human rights will need to think carefully about whether their protest is consistent with the values set out in the Principles. It seems clear that any protest that could be seen as discriminatory, such as the anti-Albanian remarks made by Marko Arnautovic, will conflict with the Principles and therefore breach Rule 50.2.

In addition, the Guidelines prohibit protests which are "targeted". This means that athletes can only make political statements in relation to general issues, such as a form injustice itself. Athletes must be careful not to target their action at specific individuals, countries or organisations associated with that injustice. Caution should be taken here, as it would be easy to direct a protest (consciously or unconsciously) at specific people, countries and governments that are contributing to the social injustice, or not doing enough to prevent it.

Some of the protests in the EURO 2020 tournament demonstrate how an action can become targeted, even if it relates to an issue based on widely accepted human rights. Germany’s attempt to light the Allianz Arena in rainbow colours ahead of their game with Hungary is likely to be seen as a targeted protest, as it was a response to anti-LGBTQ+ legislation passed by the Hungarian parliament. Ukraine’s inclusion of the Crimea on their playing shirt could also been seen as a targeted protest against Russia, following their occupation of the area. Going back further, in the 2018 World Cup, Granit Xhaka and Xherdan Shaqiri (both Switzerland players of Albanian extraction) were sanctioned for celebrating goals against Serbia with their hands in the shape of an eagle; a symbol associated with Albanian nationals. Given that this took place in the match against Serbia – and no other – it may well have been seen as a “targeted" protest rather than a general protest against injustice.

In order to minimise the risk of breaching the Charter, athletes should avoid making any kind of targeted protest. They should ensure their protests are non-specific, focusing on the issue itself rather than the people, countries and governments linked to it. Targeting any words, symbols or other actions towards other athletes (or the countries they represent), in particular, would pose the most serious risk of breaching the Charter.

Athletes also need to think about the form of their protest, and the impact that their actions might have. Protests cannot be "disruptive", which means that athletes must ensure that their protest doesn’t affect the event or the other competitors involved in it. For example, the Guidelines state that expressions made during another athlete or team’s introduction will be disruptive, because this could interfere with the others competitors’ concentration and preparation for the event. Athletes should therefore consider how they can make a clear and powerful statement that doesn’t cause any disruption. It seems likely that athletes taking a knee when they are introduced will comply with these requirements.

Consequences

Rule 59.2 of the Charter sets out the sanctions which may be issued, should an athlete or team breach the Charter. The sanctions are:

  • temporary or permanent ineligibility or exclusion from the Olympic Games;
  • disqualification or withdrawal of accreditation;
  • in the case of disqualification or exclusion, removal of any medals obtained in relation to the infringement of the Charter; and/or
  • removal of the benefit of any ranking obtained in relation to other events at the Olympics, from which the athlete or team is not disqualified or excluded, and the removal of any medals won on the basis of those rankings.

The IOC have not been afraid to issue such sanctions in the past. In the 1968 Olympics, Tommie Smith and John Carlos, iconically, raised a black-gloved fist whilst on the podium, after winning gold and bronze medals in the 200 meters event. Following the protest, the IOC ordered that Smith and Carlos be suspended from the US Team and banned from the Olympic village, for “a deliberate and violent breach of the fundamental principles of the Olympic spirit”.

The severity of these sanctions, combined with the IOC’s previous responses to protests, demonstrate how important it is for athletes to carefully consider the Charter and the Guidelines when planning a protest at the Olympics. As discussed above, the Charter could be breached easily and unknowingly by athletes who, for example, wear a rainbow armband during competition or protest in response to the action, or inaction, of a specific person, country or organisation. However, such breaches could result in serious consequences, such as the athlete or team being disqualified and excluded from the Olympic games.

 

Sponsorship Agreements 

Athletes should also check the terms of their sponsorship agreements. It is likely that these agreements will contain terms that require the athlete not to doing anything that might bring the brand into disrepute. Brands may be able to withhold payments and/or terminate the agreement if these terms are breached.

At least under English law, brands may be able to invoke the principles of repudiatory breach of contract, if they can assert that the athlete’s action(s) went to the very heart of the contract, enabling them not only to terminate the relationship but even to claim damages from the athlete as a result of any financial detriment suffered by the brand as a result of association with the act of protest. In 2018, Nike’s association with Colin Kaepernick resulted in some boycotts of Nike products (including the burning of products); in the event, Nike stood firm with its brand ambassador, but this demonstrates the tangible financial consequences that can result from a brand’s association with an act of protest.

As a result, athletes should carefully consider whether their protest could cause controversy and, if so, they should think about whether that controversial protest could damage the brand’s reputation.

 

Avoiding disputes

In order to avoid disciplinary and legal issues, athletes should engage with the IOC and/or their sponsors to confirm whether a protest is acceptable in advance of any protest or action. Legal advice will also be advisable: each case is different, and will require specific, nuanced consideration.

In the EURO 2020 tournament, UEFA investigated whether Manuel Neuer wearing a rainbow armband breached their rules surrounding political gestures. However, the investigation was dropped after UEFA found that it was a symbol for diversity, a “good cause”. It is likely that early engagement, ahead of the gesture being made, could have avoided this issue. Neuer could have explained the statement being made, and his motives for it, to secure UEFA’s approval and avoid the investigation.

In short, consultation is key. The prior agreement of all parties allows athletes to make important statements without any disputes arising.


[1] https://olympics.com/ioc/olympic-charter

[2] https://olympics.com/athlete365/app/uploads/2021/07/Rule-50.2-Guidelines-Olympic-Games-Tokyo-2020-Final.pdf

[3] https://olympics.com/ioc/news/ioc-athletes-commission-s-recommendations-on-rule-50-and-athlete-expression-at-the-olympic-games; see also the IOC AC Athlete Express recommendation report at https://olympics.com/athlete365/what-we-do/voice/athlete-expression-rule-50/

[4] https://olympics.com/ioc/news/resolution-of-the-ioc-executive-board-with-regard-to-racism-and-inclusion

Clerks

Staff