Remedy and redress for sport-related human rights abuses

1 Introduction

Participation or involvement in sport carries with it many benefits, including the potential to advance human rights. However, like any other sector or part of society, sport can also cause or be linked to harm and abuse, situations that may be exacerbated or overlooked precisely because sport is typically a good thing, and is characterised by a high degree of autonomy and self-regulation. This special issue is published at a time when a broad sport and human rights agenda is gathering momentum, with particular scrutiny on the human rights impacts of mega sport events (MSEs), notably the Beijing 2022 Winter Olympic and Paralympic Games, and the FIFA World Cup Qatar 2022. While these MSEs have drawn the spotlight, the range of human rights issues linked to sport go much deeper and wider into the day-to-day fabric of sport. Indeed, human rights abuses linked to sport occur at local, regional, and global levels, both on and off the field, before, during, and after competitions and matches, as well as close to and far away from sporting event venues. They involve, among others, cases of discrimination and racism, exploitation, displacement, violence, and abuse, which can affect athletes including child athletes, as well as communities, families and individuals attending as fans or living in and around countries that host sport events, workers on construction sites for sport infrastructure and in the supply chain.

While human rights commitments are increasingly being made and a greater understanding of due diligence and risk can now be expected, the issue of access to remedy for sport-related human rights abuses remains an immense challenge, with affected persons poorly served and remedy infrastructure poorly developed. The high degree of autonomy within sport provides valuable safeguards and protections to a sector recognized for its social good, but there remains a deficit of accountability and insufficient systems in place to remediate the types of abuse cases inevitable given the scale of power imbalances seen in the world of sport.

Access to remedy is a human right in itself. Every affected person has the right to effective remedy and redress, in the form of the actual process and the result. This is enshrined in a number of regional and international human rights treaties.¹ However, in the sporting context, for many abuses there is either a lack of effective remedy mechanisms altogether, or significant obstacles exist in accessing available mechanisms.² As a result, affected persons are often left without any remedy and redress, and state and non-state actors responsible for sport-related harms are too often not held accountable for actions or inactions resulting from or connected to their activities.

This special issue, organized and edited by Daniela Heerdt and William Rook with the support of the Centre for Sport and Human Rights (the Centre), brings together different perspectives and expertise on one of the most challenging issues in sport: remedy and redress for sport-related human rights abuses. The goal of this special issue is to stimulate further research, encourage new perspectives, and to further enrich a growing body of work that is increasingly identifying gaps and proposing a diverse range of solutions. A joint project like this, together with the International Sports Law Journal, is one of the many ways in which the Centre hopes to contribute to sharing knowledge and building capacity across the entire sports ecosystem, and to connect with contemporary research from emerging and established researchers. With the rising number of reports on cases of abuse in sport, and MSEs taking place in countries with poor human rights records, the need for more knowledge and understanding of how to address human rights abuses in the sporting context is more pressing than ever.

An open call for papers enabled a variety of perspectives and approaches to be featured in this special issue. We are pleased to include contributions on international, regional and national remedy systems and initiatives (see articles on the United Nation’s human rights system by Gonzales, and on the European Convention on Human Rights (ECHR) as applied by the Court of Arbitration for Sport (CAS) by Duval), as well as emerging concepts and mechanisms (see articles on restorative justice by Begum, on Japan’s sport remedy system by Shoichi and Yagi, and on the development of the Independent Mechanism in Canada by Donnelly et al.), and concrete cases (see article by Kuwelkar on the CAS case Keramuddin Karim v. FIFA). We cover a wide range of affected groups and sports, such as athletes, children, and referees (see articles on the Athlete Commission of Commonwealth Sport by Naidoo and Grevemberg, on children in sport by Aine et al., and on referees by Carpenter). Despite this wide range of topics covered, there are common threads concerning the challenges and the ways to address them, which will be summarized briefly in this editorial with the intention to introduce and contextualize the included articles rather than anticipating their detailed discussions and findings. We are grateful to the respective authors featured in this issue, to the journal’s editor for this collaboration, to the anonymous peer-reviewers for their support, and for the good exchanges between authors we were able to convene during the drafting period.

2 Status Quo

A brief outline of remedy and accountability mechanisms relevant to the sport and human rights context is necessary to understand the discussion on challenges and solutions and the contributions to this special issue. In principle, a wide range of dispute resolution methods and mechanisms are important for addressing sport-related human rights cases, as has been highlighted by the Centre in a study conducted in 2019.³ What this study shows, however, is that very few of them have an explicit mandate or capacity to address human rights issues, and none of them have been specifically designed to address human rights cases in the context of sport or sporting events.

Relevant mechanisms include judicial, non-judicial, and operational-level mechanisms. In terms of judicial mechanisms, relevant options exist on the domestic and regional level. Despite the fact that both Fédération Internationale de Football Association (FIFA) and the International Olympic Association (IOC) as well as other sport organisations try to prohibit recourse to ordinary courts of law for sports-related disputes, a number of sport-related cases ended up before national courts. One example is the case filed by the Dutch trade union FNV, Building and Wood Workers’ International (BWI), the Bangladeshi Free Trade Union Congress and a migrant worker from Qatar against FIFA before the Handelsgericht Zürich accusing FIFA of being responsible for violating international human and labour rights by awarding the World Cup to Qatar. Another relevant case arose in a federal court in Brazil in relation to the right to peaceful protest and freedom of expression around Olympic venues.⁴ The European Court of Human Rights (ECtHR), a regional judicial mechanism, has dealt with a number of cases related to sports, mostly concerning Article 6 ECHR on the right to fair trial and the responsibility of Switzerland, Article 8 ECHR on the right to private and family life and the responsibility of France, as well as Article 10 ECHR on the right to freedom of expression and the responsibility of Croatia.⁵ There are also sport-related cases pending before the Inter-American Court of Human Rights.⁶

Quasi-judicial mechanisms would include national sport dispute organizations, which are public or private organizations that offer mediation and arbitration services to facilitate the resolution of sport-related disputes. Examples are Sport Resolutions in the UK, the Sports Tribunal of New Zealand, the Sport Dispute Resolution Centre of Canada, the Japan Sport Arbitration Agency, Sport Dispute Solutions Ireland or National Sports Tribunal of Australia.⁷ These tribunals and organizations usually deal with cases concerning disciplinary sanctions against athletes, for instance on doping charges, but are likely to also deal with human rights issues.

Further state-based mechanisms of relevance to the sport context are National Human Rights Institutions (NHRIs) and National Contact Points (NCPs) established under the OECD Guidelines for Multinational Enterprises (OECD Guidelines).⁸ In fact, a number of cases from the sporting context have been dealt with by the Swiss and UK NCPs, challenging the human rights due diligence obligations that sports bodies have under the OECD Guidelines.⁹ NHRIs can as well play a significant role for providing accountability for sport-related human rights abuses. In fact, NHRIs and NCPs are explicitly mentioned in Principle 6 of the Sporting Chance Principles and have been part of the discussions during a high-level expert meeting on remedy in the sport and human rights context in The Hague in 2018.¹⁰ In particular, NHRIs of MSE hosts could play a significant role in supporting those adversely affected by MSE-related human rights abuses in access to remedy, and we have a seen partnerships emerge between MSE organisers and NHRIs in both Qatar and Australia.¹¹

There are a number of mechanisms that exist at the MSE level, or are run by private actors involved in the MSE business, which following the definition provided in the United Nations Guiding Principles on Business and Human Rights (UNGPs) would be considered as operational-level grievance mechanisms.¹² This would include any mechanism administered by a company involved in sport-related human rights abuses. It would also include mechanisms run by FIFA or the IOC, such as their Ethics or Disciplinary Committees and Commissions. Also relevant for the present context are their complaint mechanisms for media representatives, which apply to instances related to the Olympic Games or the FIFA World Cup.¹³ FIFA’s mechanism also explicitly applies to human rights defenders.¹⁴ Another example of an operational-level grievance mechanism at MSE level is the Complaint and Dispute Resolution Mechanism established by the London Organizing Committee for the Olympic Games, which was developed to resolve complaints and disputes related to breaches of the Sustainable Sourcing Code.¹⁵ The organizers of the 2020 Tokyo Olympic and Paralympic Games also launched grievance mechanisms for the event based on a Sustainable Sourcing Code. However, these mechanisms have been criticized for not being effective and in some cases unusable, because workers are not made aware of them.¹⁶ Finally, elements of the role of CAS could potentially be categorized as an operational-level grievance mechanism, since it is a private body that originally has been established by the IOC itself to function as ‘regulator’ of the Olympic system.¹⁷ However, since it solves sport-related disputes based on arbitration and renders legally binding awards, it should be primarily be considered a judicial mechanism.¹⁸

It is important to acknowledge that remedy mechanisms can take different forms and shapes, and not always fit into the categories of judicial, non-judicial or operational-level. In fact, some of the human rights issues that come up in the sporting context and elsewhere require creative solutions to provide effective remedy. An interesting example is the model adopted in Qatar by the Supreme Committee for Delivery and Legacy to require contractors pay back recruitment fees to migrant workers. While limited in scope, this reimbursement programme offered an innovative solution and system to provide effective remedy in form of compensation to affected people.

3 Challenges

Effective remedy requires a working combination of strong regulations, access to representation and effective resolution.¹⁹ A recent study by the World Players Association identified four types of challenges that hinder the access to effective remedy for sport-related human rights harms:

• 1. While human rights commitments may be in place from sports bodies, a remedy mechanism is either not available or not accessible;

• 2. Existing remedy mechanisms that do exist within sport are not human rights compliant;

• 3. In many cases neither human rights commitments nor a remedy mechanism are in place; and

• 4. Sports bodies are often not willing or able to use their leverage over States to ensure that human rights are protected, respected and fulfilled in the sporting context.²⁰

From a vantage point within sport, this analysis is true on a structural level. From a slightly different perspective, looking at sport in the context of existing remedy architecture (that may, or more likely not be sport-specific), the challenges common to all current mechanisms that do exist are of either of a (1) procedural, (2) material, or (3) practical nature. The most significant challenges are those of material nature, as certain types of abuses are materially out of scope of existing mechanisms, or for some abuses there simply are no mechanisms in place. For instance, there seems to be a general reluctance of sport bodies to allow access to ordinary courts for solving disputes. FIFA prohibits recourse to ordinary courts.²¹ The IOC clarifies that any dispute related to its activities is to be exclusively resolved by CAS.²² Furthermore, the jurisdiction of the CAS Ad Hoc Division for Olympic Games superposes that of ordinary courts of the host country during the event period.²³

This often leaves those affected, without any remedy or redress for the harm they suffered. One of the most essential underlying causes for this is the lack of a common reference point. In other words, human rights standards are not commonly included in codes of sport-related remedy mechanisms. Again, the CAS provides a good example. While it has rendered awards that reference the ECHR, the way in which the relevant provisions are applied usually depart from the ECtHR’s understanding (see article in this issue by Duval). Furthermore, a number of CAS awards have indirectly been challenged before the ECtHR on the basis of their infringement of Article 6 of the ECHR, the right to a fair trial. More generally, guaranteeing due process to rights-holders is not self-evident in sport-related proceedings.

Finally, practical challenges in accessing remedy for sport-related human rights abuses are abundant. The first hurdle is often knowledge and information. Often, those affected are not aware of the existence of a certain mechanism.²⁴ Next, even if those affected know about available mechanisms, it is not self-evident that they can access these mechanisms and have legal standing.²⁵ That means that for some human rights abuses that happen in the sporting context, no mechanism to remedy and redress the harm is available. In those cases, where mechanisms are available and accessible, the lack of representation presents another hurdle. This can be due to insufficient financial means, but also the lack of information and evidence or required expertise can make it difficult for rights-holders to find representation. Finally, even if a mechanism has been accessed and the process has led to the provision of remedy, it is not self-evident that the responsible parties will follow up.

4 Conceptualising solutions

Sport can be a powerful vehicle for promoting and protecting human rights, by championing values, such as respect, inclusion, fairness and integrity. Moreover, through relying on these values and a rules-bases system, sport is inherently linked to human rights. In other words, sport can be a force for good, and this is not only true for the individual level by empowering its participants and third parties, but also in terms of the structures and frameworks it can put in place. This also applies in the realm of remedy. Addressing the existing challenges to provide remedy for sport-related human rights abuses is a pre-requisite for ensuring that sport is a force for good and can have a positive impact and promote the protection of and respect for human rights. Various ideas for solutions are explored in the articles of this special issue, and before highlighting a selection of practical recommendations on how such solutions could be achieved, we first outline some key elements that should be considered for any remedy solutions.

Acknowledging that often it is not necessary to reinvent the wheel helps to make change happen faster. In fact, when it comes to remedy, much can be learned from outside the sporting context, in particular from how business entities deal with this issue. A number of operational-level grievance mechanisms have been created in the past decade to address the rising expectation of businesses to live up to their responsibility to respect human rights.²⁶ In addition, within the sporting context, there are a number of promising initiatives in place on the national level, such as Norway’s system for addressing cases of abuse in sport,²⁷ or the safe sport entities in different countries (see article in this issue by Sugiyama and Yagi). Learning from each other to prevent mistakes and consolidate good practice can improve the efficiency of setting up such mechanisms and the effectiveness of how they provide remedy.

Harnessing the power of sport to be a force for good also means that international federations and sport organizations, such as the IOC, FIFA, or Commonwealth Sport, have a responsibility to set good examples, by shaping best practice and promoting that, and perhaps even to establish common initiatives as they have the necessary resources and leverage. Their rules and policies need to be followed and applied by national federations and clubs, all the way down to grassroots level. Hence, facilitating dialogue between lex sportiva, the rules and regulations of international sports bodies, and international human rights law, can help sports bodies to establish good practice, and set expectations on how this practice must be implemented, also in relation to remedy questions.

Nevertheless, there is an important role to be played by States, which as primary duty-bearers are required under international human rights law to have adequate regulation in place to ensure access to effective remedy in the sporting context. Hence, the responsibility to provide effective remedies cannot and should not be left to sports bodies and clubs only (see article in this issue by Aine et al.). While there are benefits of sector-specific remedy solutions, as has been argued in the context of different industries,²⁸ there are also important arguments for State intervention and regulation, in particular when it concerns human rights abuses. In the sporting context, concepts such as ‘supervised autonomy’ or ‘responsible autonomy’ have emerged and refer to a certain degree of state regulation of sports (see article in the issue by Donnelly et al.) Furthermore, for cases of human rights abuses, the specificity of sport should not be relied upon to avoid State intervention and protect the autonomy of sport, as the specificity in these cases is not about sport, but about human rights. In other words, the cases at stake are human rights cases, which require expertise and capacity in dealing with human rights abuses, in particular regarding those affected, which differs considerably from expertise in sports and sporting disputes.

An affected person-centred approach is paramount to finding remedy solutions. Rather than finding solutions for those affected, where possible it should be finding solutions with those affected. This is often overlooked, or done as tick-box exercise, rather than serious stakeholder engagement. In particular, where abuses affect specific groups, such as children, migrant workers, or other disadvantaged groups, their input is the only way to find out how the harm suffered by them can best be remedied. Such engagement has to happen under clear and transparent rules and protocols, which respect the time, varying experiences, rights and vulnerabilities of those affected. Re-victimisation and re-traumatization are real risks that need to be avoided.

5 Practical recommendations

Regulatory changes to ensure effective remedy for sport-related human rights abuses seem to be inevitable, both in terms of national legislation and sports bodies’ regulations. The majority of sports bodies still do not have human rights provisions and policies in place, let alone provisions on providing remedy to affected persons.²⁹ For those sports bodies that have such regulations in place, it is no longer a question whether human rights apply, including the right to effective remedy in case of a breach of human rights. What is important is that the integration of human rights standards into sports bodies’ regulations also covers their judicial and disciplinary procedures, as well as training sessions and other activities and operations, as currently the regulations that are in place on the international level mostly cover matches, competitions or championships (see article in this issue by Aine et al.). Moreover, regarding the CAS, which enjoys a special mandate within the world of sports and is widely recognized by the relevant actors,³⁰ there are clear signs of the organisation being aware of the growing sport and human rights movement and increase in sport regulations that include reference to human rights.³¹ However, through stakeholder engagement and collaboration, CAS needs to ensure that it has the capacity to address the rising number of cases with a human rights element.

Furthermore, another way to apply an affected person-centred approach to finding remedy solutions is through restorative justice, which is a concept of justice that places the ones affected at the centre of attention in the resolution model (see article in this issue by Begum). It has been argued, not only in this special issue, that restorative justice can be applied to sport-related human rights harms.³² In fact, in can be particularly suitable in cases, where there are a number of affected persons as a result of structural abuses in a certain sport.

For any changes to the remedy framework for sport-related human rights abuses to be effective, it is important to ensure that there is a common reference point in form of agreed definitions of key terms (see article in this issue by Kuwelkar). This includes terms, such as ‘harassment’, ‘sexual harassment’, ‘harm’ and ‘abuse’, as well as ‘affected person-centred’, ‘duty of care’, ‘bystanders’, ‘trauma-informed’ and ‘enablers’, and many other terms and concepts discussed in this special issue. One way to support the creation of a common reference point is by involving the UN’s human rights mechanisms. Their general recommendations or concluding observations on specific cases enjoy a certain authoritative power and thereby can help shape and foster the right terminology. The Centre recently started an initiative to consult with stakeholders for converging the language used in the sport and human rights movement, to foster a shared understanding, create a common reference point and promote appropriate and respectful correct and generic terminology for use across the sport ecosystem.

Finally, from a rights-holder perspective, a ‘bouquet of remedies’ should be available for those affected to be able to seek remedies in various situations and under various circumstances—depending on the nature of the abuse, the actors that contributed, or the preferences of rights holders.³³ This means that a range of existing mechanisms should be considered and made available for the sporting context, including judicial and non-judicial mechanisms, and those that traditionally have not been applied to sport-related human rights harms, such as concepts, such as the duty of care, or tort of negligence (see article in this issue by Carpenter). This also means that available mechanisms in the sporting world should not exclude each other, or exclude recourse to ordinary courts. On the contrary, available mechanisms should find ways to not only co-exist but even collaborate on cases, to share information and ensure effectiveness. Such a collaborative remedy approach would for instance mean that for rights-holders it is possible to access different remedy channels, for instance criminal and civil court proceedings (see article in this issue by Sugiyama and Yagi), depending on the harm and responsible parties. It is important to acknowledge that often there are multiple actors that contribute to a harm, including enablers and bystanders, and that it may be difficult to have a central mechanism to hold all contributing actors to account. Therefore, acknowledging the (limited) applicability and advantages and disadvantages of available mechanisms, collaborative remedies can enhance the chances for rights-holders to receive justice and redress.

6 Looking ahead

Steps towards a world of ‘responsible sport’ and ‘safe sport’ are clearly underway, including with respect to human rights-compliance and availability of effective remedy and grievance mechanisms. That said, even the best prevention mechanisms cannot prevent harms from happening, which is why prevention and remedy must go hand in hand. While there are useful approaches outside the world of sport, which can be learned from, such as the framework of gender transformative remedies, the concept of restorative justice, or the UN’s human rights system, it is important to acknowledge that also within the sporting world there are approaches and systems in place that can be built upon. For instance, as a result of the increasing number of abuse cases being reported within the sporting context, more and more safe sport entities are being established, on the national and international level. FIFA has been working on the creation of an international safe sport entity in consultation with stakeholders and collaboration with the UN Office on Drugs and Crim.³⁴ Just recently, Sport Resolutions announced that it is launching a pilot for a new independent disclosure and complaints mechanisms for Olympic and Paralympic sport across the UK.³⁵

To ensure that new initiatives and mechanisms are human rights-compliant and provide access to effective remedy, research can help to clarify good practices and lessons to be learned. As Duval points out in his contribution, “authorities in legal literature” have helped to consolidate acceptance of the fact that ECHR standards, in particular article 6, apply to sports associations. The size of the gaps in the existing remedy architecture also make a strong case for new mechanisms to be piloted, including the development and application of business and human rights arbitration rules tailored to the world of sport. Hopefully this special issue, which contains many interesting ideas and practical recommendations can contribute to consolidating the acceptance of human rights standards in the world of sport more generally and the development and reform of necessary remedy solutions.