At the 1906 Olympic Games in Athens, the athlete Peter O’Connor protested the erasure of Ireland from the Olympics by climbing the flagpole during his medal ceremony, and replacing the Union Jack with the Irish flag. At the 1932 Olympic Games in Los Angeles, in the midst of the Great Depression, demonstrators denounced the economic injustice of the high cost of the Games. In 1968, at the Mexico City Olympics, Tommie Smith and John Carlos raised their fists in a Black Power salute when receiving their medals. More recently, the construction of infrastructure for the 2012 London Olympics and the 2016 Rio Olympics led to the displacement of marginalized communities, with the promise of access to new infrastructure, which has yet to materialize.Footnote 1 Whether concerning particular athletes, people involved in the organization of sporting events, or other causes, these various protests at the Olympics throughout history prove that attacks on human dignity, individual freedom, and equality between individuals also echo in sport. From this perspective, the sporting environment is not disconnected from major contemporary social issues: it constitutes a public space in which injustices can be denounced, but also the theater in which prejudices are perpetuated against various parties, such as athletes or workers.

International human rights law (IHRL) commonly addresses attacks on individual dignity and social justice issues by guaranteeing rights to individuals and offering them protection mechanisms. Consequently, it becomes pertinent to inquire whether IHRL can solve the problems encountered in sporting practices and the sporting environment. This is the question that animates this volume, which seeks to explore the potential protection(s) that IHRL can offer to combat such abuse. Indeed, while its application is not self-evident due to the nature and status of stakeholders involved in human rights abuses, several changes in the field of IHRL show that Sports Governing Bodies (SGBs) can no longer afford not to comply with human rights standards. Recent cases, such as the European Court of Human Rights’ (ECtHR) decision in Caster Semenya, reveals the application of human rights principles to international sports organizations, and the positive obligation of states to respect, protect, and promote human rights.Footnote 2

Based on a series of themes and case studies, this book aims to illustrate the impact of sports policies and practices on individuals and their identities, and to analyze the potential solutions offered by IHRL for these infringements. It thus bridges the gap between IHRL and sports studies, and will be useful to scholars in both fields, especially those unfamiliar with each other’s work. Conversely, by investigating the context of sport and its governance, this collection offers a series of valuable insights, enabling the development of an interpretation of ‘law in context’ for legal scholars in the field of human rights. As the governance and regulation of sport are seen as illustrations of other forms of normativity, this book also contributes to the conversation about the transnational dimension of law and legal orders.Footnote 3 In this respect, it illustrates that normative autonomy in the field of sport, associated with the idea of lex sportiva, tends to be relative regarding IHRL.Footnote 4

In addition to the concrete examples that can be drawn from several chapters in this volume, three elements make it possible to call into question this idea of the autonomy of sport. The first is the evolution of IHRL itself; it should be noted that the international organizations responsible for human rights have broadened the range of their instruments in order to realize their commitment to respect, protect, and fulfil. Implementing this last obligation has led to the introduction of a series of actions structured within a public policy framework. From this perspective, the adopted texts constitute what jurists call ‘soft law’. Including human rights in a public policy perspective makes it possible to go beyond the state as the sole interlocutor to include other stakeholders, such as civil society and business. The second element stems from the work on corporate social responsibility that began in the 1990s,Footnote 5 which calls for companies to adopt an ethos that reconciles economic development with respect for social values. In this context, human rights are a particularly evocative discourse for organizations seeking to strengthen their legitimacy. Finally, the polycentric approach of IHRL is also illustrative of the object of regulatory studies, highlighting the shift from legislation to regulation, and from system of government to system of governance.Footnote 6 These three elements provide a fascinating framework for understanding the evolution of the issue of human rights in the sporting environment, which serves to elucidate the gradual rapprochement between IHRL and private sporting organizations. Considering this context, this book should be useful to SGBs who are under significant pressure to address human rights standards in their governance, and to provide athletes with advice regarding the legal mechanisms that can protect them before judicial authorities.

This book intentionally is centered on athletes.Footnote 7 The editors intended to highlight this relatively overlooked category of human rights beneficiaries: individuals who practice a sporting activity in a professional or semi-professional environment. Two prominent human rights topics are at the core of this collection: discrimination based on gender or nationality, and freedom of expression. This focus is a result of the proposals selected after the call of papers launched in December 2021. These topics are aligned with crucial social issues facing our increasingly digital society, which further proves that sport is an illustrative area of more general problems. From a legal point of view, several chapters deal with United Nations (UN) human rights law, but also devote considerable space to the case law of the ECtHR. This Eurocentric perspective is due to the current state of sport global governance, in which the ECtHR is involved through the establishment of the Court of Arbitration for Sport (CAS) in Lausanne, and its connection to Swiss law, which is in turn connected to the European Convention on Human Rights (ECHR). This book does not purport to provide a complete picture of all human rights issues in sport and all potential legal solutions. Other topics could have been more extensively addressed, such as freedom of religion or the right to privacy,Footnote 8 which has given rise to several cases in the fight against doping.Footnote 9 The situation of other beneficiaries, such as workers or people displaced in the construction of sports facilities, is also worthy of further analysis. The ECtHR decision in the Caster Semenya case deeply impacted the editorial process. Although the long-term effects of this decision will need to be addressed, several chapters explore different elements of the case. Finally, the importance of European human rights law in the field of sport is not without question, given the universalist vision promoted by global SGBs and the overshadowing of other legal systems that offer additional perspectives on solutions to protect vulnerable people. The limitations of the present volume are an invitation for other legal experts to explore these different areas and contribute to the dialogue that a universal human rights vision requires.

Before delving into the various chapters, some clarifications must be made regarding the context and approach of this book. First, the specific regulatory context of sports organizations will be discussed, which helps to understand the weaknesses of measures to protect, promote, and implement human rights in the field of sport. Second, the subject of sport will be placed in the context of IHRL. The growing economic power of global SGBs increases the vulnerability of athletes in sporting contexts, and thus strengthens the call for a complete application of human rights law to the field of sport. Finally, the editors will address questions concerning the legitimacy of the rise of European human rights law in sports governance.

1 The ‘Autonomy’ of Sports Governing Bodies

Historically, SGBs have been given significant autonomy when organizing sporting competitions as well as regarding their internal structure and regulations. One explanation for this is the idea that (international) sports should not be subject to the political influence of specific states, and that athletes should be free to organize their activities according to the specific needs of their chosen sport. Liberals would also add that the absence of state interference serves the idea of self-government in an area where the possibility of attracting sponsors and the general public is an important metric of success. While in some states, the interference with domestic sports associations may be more pronounced, there is hardly any international law related to SGBs and sports. A notable exception is the area of doping where a traditional international treatyFootnote 10 exists and an international body has been established, the World Anti-Doping Agency, although only in 1999 and with a hybrid character that falls short of a traditional international organization;Footnote 11 it is funded equally by the Olympic Movement and Member Governments.

Further, not only are international treaties and organizations absent from the field of sports, but also dispute settlement is largely left to the organizations themselves. The CAS was only created in 1984, and remains under the auspices of the International Olympic Committee (IOC) with little interference by the state or international courts and tribunals.Footnote 12 As the CAS is fundamental for safeguarding the (human) rights of athletes, it is a system that should be subject to close analysis, and many chapters of this volume directly address its structure and approach. Recent case law from the Swiss Federal Tribunal (which is the only national institution for challenging arbitral awards by the CAS), and national courts relating to disputes settled by the CAS have shown that the autonomy of this system could be further challenged in the near future. What is particularly interesting from an IHRL perspective is the fact that governments are bound by specific international obligations while the sports world is allowed to largely organize itself; this is relevant for the role of the ECtHR with regard to Switzerland where the CAS is located.Footnote 13

2 Sport, Sports Governing Bodies and Athletes in International Human Rights

The second element that will now be addressed is the relationship between sport and IHRL; indeed, the topic of sport is not new regarding the agenda of public international organizations. Early perspectives on the topic treated sport as a means for personal development, and this has developed more recently in favor of recognizing the human rights of people who are impacted by sporting organizations and events. Several conventions and political declarations show that sport was first viewed as a vehicle for personal development at the universal level. In 1959, the UN adopted the Declaration on the Rights of the Child, which recognized sport as a fundamental right.Footnote 14 In 1978, in its International Charter of Physical Education, UNESCO declared that sport and physical education are fundamental rights for all.Footnote 15 The recognition of sport as a factor in constructing identity and personal development is also reiterated in international conventions on the fight against racism, children’s rights, and the rights of persons with disabilities.Footnote 16 From the 2000s onwards, the international approach to sport took on an institutional dimension. Within the UN, sport became a tool to help achieve the Millennium Development Goals (2000–2015) and the Sustainable Development Goals (2015–2030).Footnote 17 In 2001, the UN Secretary-General appointed a Special Adviser on Sport for Development and Peace; a task force of several UN agencies (including UNESCO, ILO, WHO, UNICEF, and UNDP) was also instituted. The UN General Assembly declared that 2005 was the ‘International Year of Sport and Physical Education’.

In this regard, sport is not only a tool for helping people develop their autonomy and exercise their liberty, but it becomes an instrument of public policy. It is viewed as a means of achieving objectives in the fight against poverty and the promotion of peace, while also contributing to personal development. This instrumental and social understanding of sport led to it becoming an integral part of public policy that could be deployed at the international or national level. At the regional level, the Council of Europe was an active player for connecting sport and human rights. With its resolution on ‘Principles for a Policy of Sport for All’ in 1975, the European organization first promoted sport as a vehicle for improving individuals’ rights to health, education, culture, and participation in the life of their community, and encouraged governments to develop policies in the field of sport. This resolution was updated in 1992, 2001, and 2021 as the ‘European Sports Charter’.Footnote 18 Further, the Council of Europe adopted numerous recommendations in which the issue of sport is connected to other issues in the area of human rights protection. Some relevant resolutions here include the prevention of racism, xenophobia and racial intolerance in sport (Rec(2001)6), or in improving physical education and sport for children and young people in all European counties (Rec(2003)6). In its recommendation, the Committee of Ministers of the Council of Europe also expressed its sensitivity to governance issues, adopting two recommendations on the principles of good governance in sport (Rec(2005)8 and CM/Rec(2018)12), and also on the principle of autonomy of sport in Europe (CM/Rec(2011)3).

The rise of economic globalization and the arrival of transnational economic players changed the classic perspective on IHRL, and offered a new path for protecting human rights. Since the 1990s, a new kind of actor emerged in the relationship between international organizations, states, and individuals: the transnational private organization. These transnational players operate in a territorial, and therefore legal, environment distinct from the one in which they are based, and in this context can cause harm to people where public authorities are not in a position to protect them. In 2007, the Special Representative of the Secretary-General on Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, recommended that transnational organizations adopt a human rights risks-based approach in their management.Footnote 19 The recommendation proposed to connect “elements of the state-centered international law not only to national law and legal institutions, but also to the forces of the market which drives many of the non-state business governance initiatives”.Footnote 20

In this context, the business and human rights perspective presents a cross-fertilized approach between the concepts and principles of human rights applicable in relations between states and individuals and those from organizational management; combining a ‘goal-based approach’, with the deployment of strategies and action plans, with a ‘compliance approach’, with implementation measures such as impact assessments. Indeed this kind of approach was adopted in 2011 by the UN Human Rights Council as the ‘Guiding Principles on Business and Human Rights’ (UNGP).Footnote 21 The UNGP offers a comprehensive catalogue of measures for states and business organizations to mitigate the negative effects of business on human rights. It echoes in the sporting field, particularly concerning the organization of mega-sporting events, which highlight the dark side of international sport competitions and their governance.Footnote 22 Involving a multitude of actors from international sports organizations to local contractors, such events blur the chain of responsibilities; some of these events have involved the expulsion of vulnerable populations and the exploitation of workers (i.e. London 2012 Summer Olympics, Rio 2016 Summer Olympics, FIFA World Cup Qatar 2022). Private sports organizations no longer remain off the radar of human rights defenders. The specific institutional architecture of sports organizations (often a decentralized and pyramidal structure) continues to generate controversy regarding legal status and obligations in terms of human rights.Footnote 23

The comprehensive approach of the UNGP offers a solid way of encouraging sports organizations to commit to human rights.Footnote 24 Some of these organizations have followed this path: in 2016, the Fédération internationale de football association (FIFA) made such a commitment.Footnote 25 The International Olympic Committee (IOC) followed suit in 2017.Footnote 26 A coalition of multi-stakeholders of international agencies, governments, sports bodies, and civil society, the Centre for Sport and Human Rights, was launched in 2018 to encourage all sports organizations to find solutions to the questions of applying human rights to the sporting field.Footnote 27

However, the commitments made by international sports organizations to respect the UNGP cannot stand alone. While the UNGP was conceived as a tool to fight against the negative external effects of economic activity on populations, it was not specifically envisaged in terms of relations between sport organizations and individual athletes. It offers a useful perspective for thinking about this relationship, especially when considering the autonomy of sport organizations, but also contains weaknesses inherent in their ontology. This leads us to two separate conclusions: first, the need for athletes to have a territorial connection criterion enabling them to benefit from the classic legal principles and institutions of IHRL; and second, the importance of positive obligations in IHRL for guaranteeing the respect of human rights by private actors.Footnote 28

3 The Swiss Connection of Sports Governing Bodies

The third element that will be explored in this introduction is the connection between the world of sports and public judicial authorities. The argument of the autonomy of the normative system of sports organizations is difficult to resist in the field of human rights. Indeed, as human rights monitoring bodies consider that states have a positive obligation to act to guarantee respect for human rights, it becomes imperative to delineate the criteria for imposing such obligations on sports organizations.

As a reminder, in the area of sports disputes, the CAS,Footnote 29 which is based in Lausanne, Switzerland, has primary jurisdiction, but appeal is possible to the FST. Concretely, it means that once the CAS has issued its decision, this is subject to Swiss jurisdiction, which makes it possible to create a link with the jurisdiction of the ECtHR.Footnote 30 Article 190 of the Swiss Federal Act on Private International Law notes that an arbitration decision, whether made by a sports organization or not, may be challenged before the FST, but only in cases determined by the legal provision. This involves, on the one hand, a breach of procedural rules and, on the other, a violation of Swiss public policy. Nevertheless, it must be noted that the FST has developed an extremely restrictive and sometimes rather cryptic interpretation of the notion of public policy. For illustration, in a particular tribunal ruling, it is noted that “a decision is incompatible with public policy if it disregards the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal order”.Footnote 31 The ruling further states that “an award is contrary to substantive public policy when it violates fundamental principles of substantive law to such an extent that it can no longer be reconciled with the relevant legal order and system of values”.Footnote 32 It continues: “it is not sufficient that a reason chosen by an arbitral tribunal offends public policy; it is the result to which the award leads that must be incompatible with public policy”.Footnote 33 Finally, and in a particularly scathing manner, it is stated that “the incompatibility of the award with public policy, as referred to in Art. 190 Para. 2 let. e LPIL, is a more restrictive concept than that of arbitrariness”.Footnote 34 The annulment of an international arbitral award on this ground of appeal is very rare.Footnote 35

Regarding this right of appeal, the exceedingly narrow understanding of the public policy concept gives rise to concerns regarding the efficacy of the right of appeal to a judicial authority for issues beyond those related to the conduct of arbitration proceedings. The FST has explicitly signaled its intention not to create an avenue of redress beyond the procedural matters previously mentioned, even for individuals resorting to arbitration, including athletes. It should be noted that such an interpretation is not unexpected, given the chronic caseload burdening the FST.

Nevertheless, the ECtHR has already been tasked with adjudicating on the highly restrictive interpretation of public policy of the Swiss tribunal. In its three-judge ruling Bakker v. Switzerland in 2019, the European Court emphasized its limited authority in scrutinizing the application of domestic law by national judicial authorities. In this ruling, the Court acknowledged this stringent understanding of public policy while specifying its willingness to intervene if it detected arbitrary or manifestly unreasonable applications of domestic law. Although this interpretation had already raised concerns in Ali Riza v. Turkey, where the Court ruled that entrusting arbitration proceedings solely to private entities necessitates ensuring compliance with all aspects of Article 6 of the ECHR, it was deemed contrary to Article 13 ECHR in Semenya v. Switzerland. In the Semenya case, the Court also determined that “the Federal Court, primarily due to its severely limited review powers, had inadequately addressed the well-substantiated and credible claims, including allegations of discrimination, put forth by the applicant”.Footnote 36 Consequently, the ECtHR concluded that,

“in its capacity as a custodian of European public policy […] the domestic remedies accessible to the applicant, when viewed comprehensively and in light of the specific circumstances of the case, could not be considered effective within the scope of Article 13 of the Convention.”Footnote 37

In essence, the Court acknowledged that the litigant was afforded incomplete protection, primarily because the FST adopts an overly narrow interpretation of the concept of public policy, construing it solely in procedural terms and as an exceptional grievance, thus obscuring its potential applicability.

Finally, it should be noted that despite restrictive interpretation of Article 190 of the Swiss Federal Act on Private International Law (which will have to change in light of the Caster Semenya v. Switzerland case law), this article does represent an important bridge between private law actors and responsibility for the protection of human rights. Moreover, it is precisely thanks to this type of legal mechanism that arbitration sentences can be brought into the realm of positive law and can then enter the system of conventional protection of human rights, since the ECHR allows appeals against national decisions rendered in the last instance.Footnote 38 In accordance with the notion of positive obligation developed in IHRL, states are responsible within their jurisdiction when there are human rights violations by private actors. In this regard, the ECtHR ruled that Switzerland was indeed responsible for human rights violations by the CAS, which makes it clear that the CAS is indirectly obliged to take human rights into account; this opens the possibility of addressing complaints to the ECtHR against Switzerland.

4 Overview of Chapters

The book consists of 11 chapters. Ten chapters were presented and discussed at a workshop held at the University of Lausanne on 30 June 2022. Regarding the key role of the CAS, based in Lausanne, the editors invited Marjolaine Viret and Antoine Duval to contribute with a chapter on CAS case law. The call for papers welcomed proposals for contributions adopting doctrinal or socio-legal approaches. The contributions thus reflect the diversity of legal research. Several chapters adopt a descriptive point of view and reveal the underlying ideological logic of power. Others take a normative approach, characteristic of legal dogmatics, and propose new normative developments. Some focus on the national context, while others examine the scope of international standards and the role of supervisory institutions. The result is a rich mix of contributions that illustrate the complexity of human rights in sports.

The first chapters are dedicated to discrimination and intersectionality, from national and international perspectives. Through several approaches, they investigate the potential and limits of IHRL to protect women athletes. In Chapter ‘‘But you’re ok…’ British South Asians and Regulatory Barriers to Participation in Sport’, Seema Patel focuses on the regulatory barriers to participation from the perspective of British South Asian athletes in football and cricket. Based on an auto-ethnography, the socio-legal scholar emphasizes the double ambiguity of the law and sport, which act as barriers but are also effective tools for protecting marginalized groups. In Chapter ‘Gendered Athletes in Sports: CEDAW’s Role in Tackling Heterosexist and Racialized Uniforms in Sports’, Lena Holzer dives into the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to assess the human rights implications of gendered and racialized clothing regulations. In Chapter ‘#MeToo, Sport, and Women: Foul, Own Goal, or Touchdown? Online Abuse of Women in Sport as a Contemporary Issue’, Olga Jurasz and Kim Barker question the role of sport concerning online abuse against women and the limited impact of human rights protections. In Chapter ‘Hormonal Eligibility Criteria in Women’s Professional Sports Under the ECHR: The Case of Caster Semenya v. Switzerland’, Pieter Cannoot, Cathérine Van de Graaf, Ariël Decoster, Claire Poppelwell-Scevak and Sarah Schoentjes use the Caster Semenya case for analyzing the hormonal eligibility criteria set by World Athletics in the light of the Articles 14, 3, and 8 ECHR.

The next chapters deal with the issue of nationality and its role in inclusion or exclusion for participation in elite sports. In Chapter ‘Filipinos First? Exploring Xenophobia and Its Legal Remedies in Philippine Amateur Basketball’, Joseph Benjamin De Leon analyzes the discriminatory practices against African student-athletes in Filipino national university competitions despite a series of human rights norms in Philippine law through a newspaper analysis. In Chapter ‘Respecting the Right to Nationality in International Sport’, William Thomas Worster addresses the issue of the right to nationality in international sports, highlighting the contradiction between Olympic regulations and IHRL surrounding nationality.

Chapters ‘Athlete Activism at the Olympics: Challenging the Legality of Rule 50 as a Restriction on Freedom of Expression’ to ‘Freedom of Expression of Athletes and Players: The Current and Potential Role of the European Court of Human Rights as a Watchdog in Sport’ are dedicated to the second key issue in this book: the question of freedom of expression for athletes. In this context, Mark James and Guy Osborn focus on Rule 50 of the International Olympic Committee, analyzing the provision and its evolution with the 2022 Tokyo Olympic Games in light of freedom of expression, and argue for a complete overhaul of Rule 50 to be compliant with human rights law standards. Chapters ‘The Incompatibility of Banning Political Speech in Sports with the Right to Freedom of Expression Under the European Convention on Human Rights’ and ‘Freedom of Expression of Athletes and Players: The Current and Potential Role of the European Court of Human Rights as a Watchdog in Sport’ address athletes’ freedom of expression in the ECtHR context. H. Burak Gemalmaz focuses on the context of the Turkish football cases, examining the Turkish authorities’ response to the ECtHR’s demands. Daniel Rietiker investigates the ECtHR’s watchdog role in protecting athletes’ freedom of expression.

Marjolaine Viret and Antoine Duval analyze how the ECHR has been employed by both the Swiss Federal Tribunal and the European Court of Human Rights to review CAS rulings.

In the final chapter, Antonio Di Marco proposes to go beyond current international human rights norms and athletes’ perspectives to expand the human rights catalogue by including the right to sport for all. Adopting a conceptual and argumentative approach, the author considers that such a right will guarantee inclusive and non-discriminatory access to sporting activities and enhance the unity of fragmented claims rooted in other human rights, such as the right to participate in cultural life, the right to education, and the right to health.

The editors wish to address their warmest thanks to all of the authors who contributed to this collective book. Special thanks are also due to Doriana Ferreira, who was responsible for the administrative and logistical aspects of the project, and to Mathieu Fasel for his involvement in organizing the workshop. They would also like to thank the Faculty of Law, Criminal Justice and Public Administration at the University of Lausanne for its financial support, which made it possible to organize this international workshop and to publish this book in open access.