Freedom of Expression of Athletes and Players: The Current and Potential Role of the European Court of Human Rights as a Watchdog in Sport

Abstract

Professional athletes enjoy many privileges, but their special status in society imposes on them duties that go far beyond the responsibilities of ordinary citizens. For example, they are generally expected to abstain from certain political statements (principle of political neutrality) and might face disciplinary sanctions for infringing that prohibition. This chapter focuses on the European Court of Human Rights’ current and future contribution as a watchdog with a view to protect the right of athletes to freedom of expression (Article 10 ECHR).

In Part 1 of this chapter, cases that have already been decided by the Court in the field of sport will be analyzed. The case of Šimunić v. Croatia indicates that freedom of expression, within Article 10 ECHR, is not unlimited. Three recent judgments related to Turkey, delivered in 2021, will also be addressed; these concern sports sanctions and financial penalties imposed by the Turkish Football Federation on account of statements made by athletes to the media or messages posted and/or shared on social media.

In Part 2, the chapter will discuss the potential role of the ECtHR in securing the freedom of expression of athletes in the future in light of the principle of political neutrality in sport, which has yet to be addressed by the Court.

He expresses his strictly personal views. See also, for the topic of human rights in sports more broadly, from the same author: Defending Athletes, Players, Clubs and Fans, Manual for human rights education and litigation in sport, in particular before the European Court of Human Rights. Council of Europe Publishing, Strasbourg (2022).

1 Introduction

Professional athletes and players are, in spite of their superhuman performances, not unthinking machines or robots. Like everybody else in society, they have personal opinions they may want to express and share publicly. In practice, however, significant obstacles exist to an effective exercise of this foundational human right. This chapter is focused on the European Court of Human Rights’ (“ECtHR” or “Court”) current and future contribution to freedom of expression in sport. It identifies the issues that have already been dealt with by the Court as well as one that has yet to be addressed: namely, the principle of political neutrality in sport.¹

The question at the heart of this chapter is whether the sacrosanct principle of political neutrality of sport can be justified in light of recent human rights developments. Indeed, under the strict rules of sport-governing bodies, athletes and players are expected to abstain from certain political statements and might face disciplinary sanctions for infringing that prohibition. For example, recent tributes by athletes to the Black Lives Matter movement, triggered by the death of George Floyd by a Minneapolis police officer,² have brought to light a human rights challenges that the world of sport is currently facing: the freedom of expression of athletes and players. Even though these protests have generally been tolerated by the relevant sport-governing bodies, the International Olympic Committee (IOC) has nevertheless confirmed that athletes are still banned from protesting at the Games.³ The IOC had announced well before the Summer Games in Tokyo that athletes who staged protests would face sanctions. Moreover, China’s Olympic organizing committee warned that foreign athletes may face punishment for speech that violates Chinese law at the 2022 Winter Games in Beijing.⁴

This chapter follows the following structure: Part 1 will summarize the cases that the Court has already decided in the field of freedom of expression in sport, namely, the case of Šimunić v. Croatia,⁵ and three very similar cases against Turkey, decided by the Court on 18 March 2021.⁶ These cases concern sports sanctions and financial penalties imposed on the applicants by the Turkish Football Federation on account of statements made by athletes to the media, or messages posted on social media. In these judgments, the Court affirmed its recent trend towards a more procedural approach for this kind of case, which has its advantages and drawbacks, as will be discussed further on.⁷ In Part 2, an issue that has yet to be addressed by the Court will be analyzed: namely, the principle of political neutrality in sport. The first section contains preliminary observations (Sect. 2.1), followed by an explanation of the principle of political neutrality (Sect. 2.2), and finally some theoretical considerations, with particular emphasis on the margin of appreciation doctrine (Sect. 2.3). The chapter will conclude with some final remarks.

2 The Issues Decided by the ECtHR so Far

2.1 The Šimunić Case: The Limits of Freedom of Expression

Article 10 ECHR guarantees freedom of expression, one of the fundamental rights protected by the Convention. Paragraph 1 of Article 10 ECHR sets out the right while Paragraph 2 details the limitation to that right; this is a comparable structure to Articles 8, 9 and 11 of the Convention. A limitation is justifiable if the interference is “prescribed by law”, if it pursues a legitimate aim, and if it is “necessary in a democratic society” within the meaning of Paragraph 2 of Article 10. Overall, the Court’s case law focuses on the third test, which is the most demanding of the three standards. The Court occasionally uses the “positive obligation” approach instead of the interference test, in particular when acts or omissions of private actors are at stake. This concept will be detailed further below.⁸

There are limits to freedom of speech under Article 10 ECHR. The Court’s case law reveals a variety of values that have been considered contrary to the values of the Convention. Apart from typical examples of (neo-)Nazism,⁹ fascism, racism, anti-Semitism and (Stalinist) communism, the Court has addressed variations of expression linked to Islamic “fundamentalism”¹⁰ and to aggressive forms of Kurdish nationalism, involving expressions of hatred and incitement to violence.¹¹

The Court’s overall approach seems to include most forms of free speech, including hideous and appalling ones, in the scope of protection of Article 10 § 1 ECHR, but that they may be lawfully restricted in light of Paragraph 2 of this provision.¹² When confronted, however, with blatant anti-Semitism and Holocaust denial, it might exceptionally find with reference to Article 17 ECHR, prohibiting the abuse of rights,¹³ that such speech is not protected at all by Article 10 ECHR because it seeks to exploit that provision for ends that are incompatible with the letter and spirit of the Convention. This is the case where comments challenge the category of “clearly established historical facts”, such as the Holocaust.¹⁴ Apart from negationist or revisionist speech, the Court has considered that other types of speech might also fall under Article 17 ECHR insofar as they have the potential to also stir up violence or hatred.¹⁵ This is the case, inter alia, with incitement to ethnic,¹⁶ racial,¹⁷ or religious¹⁸ hate, or with incitement to violence and support for terrorist activities.¹⁹ In such cases, the Court declares a case inadmissible for being incompatible ratione materiae with the ECHR.

One situation of extreme speech has taken place in the domain of football, a sport that has seen recurrent instances of homophobic and other discriminatory chants in stadiums, which FIFA has attempted to deter through the use of regulation and disciplinary sanctions.²⁰ This restriction has collided with the right to freedom of expression. In the case Šimunić v Croatia, the applicant, a Croatian football player, was convicted by the Croatian authorities of a minor criminal offence for addressing messages to spectators at a football match, the content of which expressed or incited hatred on the basis of race, nationality, and faith.²¹ In fact, he used an official greeting of the Ustasha movement, the totalitarian fascist regime of the Independent State of Croatia. The event at issue took place at Maksimir Stadium (Zagreb), after the official end of the match against the national team of Iceland on 19 November 2013, when the accused took the microphone, walked out onto the middle of the pitch and turned towards the spectators, addressing them by shouting “For Home”, provoking some spectators to reply “Ready!”²²

Before the Court, he submitted in particular that his right to freedom of expression (Article 10 ECHR) had been violated. The ECtHR declared the applicant’s complaint inadmissible and manifestly ill-founded, finding that the interference with his right to freedom of expression had been supported by relevant and sufficient justifications, and that the Croatian authorities had struck a fair balance between his right to free speech, and society’s interest in promoting tolerance and mutual respect at sports events, as well as combating discrimination in the sport.²³ It did, however, not find it necessary to apply Article 17 ECHR and exclude the applicant’s speech from the scope of Article 10 ECHR.²⁴

One of the decisive arguments invoked by the Court for the inadmissibility of the case was that the applicant, as a famous footballer and role-model for many young fans and players, should have been aware of the possible negative impact of provocative chanting on spectators’ behavior, and should have abstained from such conduct.²⁵

2.2 Three Judgments Against Turkey Delivered on 18 May 2021: Confirmation of a Procedural Approach

Aside from Šimunić, the Court delivered three judgments related to Turkey on 18 May 2021.²⁶ All three cases concerned sports sanctions and financial penalties imposed on the applicants by the Turkish Football Federation (TFF) on account of statements made to the media or messages posted on social media, and the appeal proceedings lodged against those sanctions by the applicants before the Federation’s Arbitration Committee.²⁷ In all three cases, the Court found violations of Article 10 ECHR.²⁸

In the case of Sedat Doğan v. Turkey, the applicant was a member of the management board of Galatasaray football club.²⁹ While participating via telephone in a televised sports event, he made comments about the referral to the Professional Football Disciplinary Committee of the TFF of two players from his club who, at a football match on the day following Nelson Mandela’s death, had worn shirts paying tribute to him. Following the Disciplinary Committee’s delivery of a decision imposing a sanction on the applicant, he published several messages on his Twitter account.³⁰ Holding that these tweets amounted to unsportsmanlike language capable of debasing the image of football, inciting violence and disorder in the sport, and giving rise to protests by supporters, the Disciplinary Committee sentenced Mr. Doğan to disciplinary sanctions.³¹ These sanctions were upheld by the TFF Arbitration Committee.

In the case of Naki and AMED Sportif Faaliyetler Kulübü Derneği v. Turkey, the first applicant was a professional football player and was employed at the time by the applicant club, which competed in the first division of the Turkish professional league (Süper Lig). The second applicant was Amed Sportif Faaliyetler Kulübü Derneği, a Turkish association operating as a sports club based in the Kurdish town of Diyarbakır.³² In January 2016, after his team’s victory in a football match in the Turkish championship, Mr. Naki published a message on his Facebook account where he dedicated the victory of the match to those who had lost their lives or sustained injuries during the persecutions that had been occurring in Turkey for over fifty days.³³ The TFF’s Professional Football Disciplinary Committee held that the applicant’s comments breached the ban on ideological propaganda and amounted to unsportsmanlike language capable of debasing the image of football, inciting violence and disorder in the sport, and giving rise to protests by supporters. The Committee imposed a disciplinary sanction on the applicant.

In the case of İbrahim Tokmak v. Turkey, the applicant was a football referee at the time of the events in question.³⁴ In January 2016, Mr. Tokmak shared on his Facebook account a post from another person about H.K., a commentator and publisher of a daily newspaper, who had died two days previously in a hotel room during a trip to Saudi Arabia. Press reports indicated that this person had died from a heart attack caused by a drug used to address erectile dysfunction.³⁵ When sharing this publication, the applicant added his own commentary: “He was a real son of a bitch […] Thanks to those who invented Viagra!”³⁶ In February 2016, the TFF’s Professional Football Disciplinary Committee imposed on Mr. Tokmak the disciplinary sanction of a three-month withdrawal of the rights attached to his functions.³⁷ This measure had the effect of cancelling his license automatically.³⁸

In all three cases, the Court noted that there had been an interference in the applicants’ right to freedom of expression, that the interference in question had a legal basis and pursued the legitimate aims of the prevention of disorder, crime and the protection of the reputation and rights of others. However, the Court considered that the national authorities had not carried out an appropriate analysis, giving regard to all the criteria laid down and applied in its case-law concerning freedom of expression. In the Court’s view, the Government had not shown that the reasons given by the national authorities to justify the contested measures had been relevant and sufficient, and that those measures had been necessary in a democratic society. It followed that for each of the three cases, there had been a violation of Article 10 ECHR.³⁹

It is suggested here that the Court’s analysis, very similar in all three cases, follows a new general trend towards a more procedural approach of the ECtHR, as a reaction to the call for subsidiarity and margin of appreciation, not only under Article 10 ECHR.⁴⁰ In other words, the Court did not conduct its own assessment on the measures imposed on the applicants, but found that the balancing exercise of the TFF had not been sufficient in light of its jurisprudence concerning Article 10 ECHR. Such a procedural approach might be an appropriate compromise in sensitive cases insofar as the ECtHR can avoid dealing with or defining controversial concepts, such as extremism, terrorism, and hooliganism. At the same time, the Court opens itself to the reproach of not being willing to reply to the key issues of a case, including the legitimate question whether the principle of political neutrality can be maintained in light of Article 10 ECHR; particularly in situations where speech contributes to a political debate or to a discussion that is in the public interest.

2.3 Conclusion of Part 1

The ECtHR’s decision in Šimunić follows the usual line of jurisprudence in cases where the limit of legitimate speech has been overstepped and, as a result, where the Court refuses to protect freedom of expression. Moreover, it reinforces FIFA’s commitment to combat discrimination and confirms that the sanctions it is imposing on clubs and players for discriminatory conduct are likely to be deemed compliant with the ECHR.

For practical reasons, an in-depth analysis of the three cases against Turkey has not been made here, but it can nevertheless be added that the Court applied the usual Article 10 ECHR tests to sport-related situations. While the outcome of the first two cases explained above is unsurprising, the conclusions drawn by the Court in the İbrahim Tokmak case is less expected considering the limited value of the comments made by the applicant for a constructive public debate. On the other hand, the serious consequence, consisting of the cancellation of the license as a referee, might have been the decisive factor for the Court. It must be kept in mind that Article 10 ECHR also applies to information and ideas that “offend, shock or disturb the state or any sector of the population”.

In the next section, a controversial principle that has not yet been addressed by the Court—the political neutrality of sport—will be introduced and discussed.

3 Political Neutrality in Sport and Potential Conflicts with Article 10 ECHR

3.1 Preliminary Observations

A topic that has not yet been addressed by the Court—neither in Šimunić, nor in the three cases against Turkey—is the principle of political neutrality in sport and its conformity with Article 10 ECHR. Freedom of expression has historically been limited by the sport-governing bodies in line with the commitment of the IOC to remain “strictly politically neutral” at all times. It is pure speculation, and the question can therefore be left open, whether the Court would also have found violations of Article 10 ECHR if it had embarked on a substantive examination of the complaints in the three cases of Turkey instead of a procedural approach. It is suggested here that in the case Naki and AMED Sportif Faaliyetler Kulübü Derneği v. Turkey, the principle of political neutrality of sport was, at least, an underlying ground for the sanctions imposed on the applications. In the case of Sedat Doğan, the sanctions imposed on the applicant’s players for paying tribute to Nelson Mandela were at the origin of the dispute, and certainly inspired by the principle of political neutrality. The question remains to what extent the generally comprehensive protection of freedom of expression by the Court would accommodate or challenge the principle of political neutrality in sport.

This section of the chapter will discuss whether this principle leads to problems under Article 10 ECHR, and assesses the Court’s approach.

3.2 The Principle of Political Neutrality

The principle of political neutrality in sport, sometimes referred to as the “golden rule”, is expressed in Rule 50 of the IOC Charter, according to which “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.”⁴¹ The prohibition for athletes to express political ideas in the sporting area is aimed at protecting the moral force of sport-governing bodies and at guaranteeing the autonomy of sport.⁴² The principle must be distinguished from the freedom of athletes and players to criticize sporting authorities, which generally involves a greater degree of tolerance because good faith criticism against those in positions of power might allow acts and practices of mismanagement to be exposed.⁴³

The IOC and the main international sports federations envisage this principle as part of their “universal fundamental ethical principles”.⁴⁴ The principle has traditionally been imagined as ‘absolute’ without mitigation or balancing.⁴⁵ For instance, the famed ‘black power salute’ of the Olympic athletes Tommie Smith, John Carlos, and Peter Norman at the 1968 Mexico City Olympic Games became an icon for human rights and democracy.⁴⁶ Athlete activism has increased recently,⁴⁷ and so too have sanctions and disciplinary investigations for provocative political behavior.⁴⁸ This has given rise to criticism in respect of athletes’ freedom of expression. The principle of political neutrality appears to be in conflict with the political engagement of the IOC to promote human rights and “peaceful society concerned with the preservation of human dignity”.⁴⁹ This potential contradiction has recently been become more evident by athletes’ symbolic tributes to the Black Lives Matter movement.⁵⁰

There have been recent criticisms against a strict application of the principle of neutrality,⁵¹ and as a reaction, the IOC Athletes’ Commission issued guidelines to clarify the purpose and goals of Rule 50 of the IOC Charter.⁵² The IOC argues that Rule 50 does not imply an extensive restriction of the right to free speech of athletes; they should have the opportunity to express their opinion, including during press conferences, interviews or on social media. Protests and demonstrations are banned because they could be divisive and “drive a wedge between individuals, groups and nations” at all Olympic venues, contrary to the image of peace and harmony propagated by the Olympics.⁵³ The guidelines add that incidents will be evaluated by their respective National Olympic Committee, International Federation and the IOC, and that disciplinary measures shall be taken on a case-by-case basis as necessary.⁵⁴

3.3 Theoretical Considerations

3.3.1 Margin of Appreciation Doctrine

A key concept used by the Court is the ‘margin of appreciation’ doctrine. The margin of appreciation is the leeway given to a state in determining the necessity of an interference into the rights at stake in a given situation, including the proportionality of the impugned measure.⁵⁵ It is the expression of the principle of subsidiarity imposes on the Court the duty to apply restraint in assessing the domestic tribunal’s decisions, and to limit its own control (the so-called “European control”) to the question of whether a fair balance has been struck between the different interests at stake.⁵⁶ It would be one of the decisive factors in a potential examination by the Court of the conformity of the principle of political neutrality with Article 10 ECHR.

If the impugned measure has been imposed by a private actor, the “interference” approach normally does not apply, and the only question to be examined is whether the state has complied with its “positive obligations”.⁵⁷ In a leading case on positive obligations in the domain of freedom of expression, the Court held that:

43. The Court recalls the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the state's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals […] In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention.⁵⁸

However, the distinction between “interference” and “positive obligations” has become more and more blurred. In the Šimunić case, the situation was easy for the Court because the applicant was sanctioned by the state based on criminal law, a typical interference; the three Turkish freedom of expression cases are more ambiguous on this point. It is worth mentioning that, in all three cases, the Court applied the “interference” test, and in its conclusions under Article 10 referred to “national authorities” (“autorités nationales”) when addressing those bodies. This is in spite of the private nature of the arbitration bodies having rendered final decisions on the disciplinary sanctions against the applicants.⁵⁹

It should also be said that it may not actually matter which test is applied because, even under the positive obligation test, the question to be resolved is whether a fair balance has been struck between the competing interests at stake. In both contexts, the state enjoys a certain margin of appreciation.⁶⁰ The most significant difference between the two tests is the fact that there is generally no legal basis inquiry necessary in the positive obligation test. As a result, the question of which test to use might in practice turn out to be relevant, insofar as it has been claimed that Rule 50 is not precise enough to serve as a legal basis for an interference in such a fundamental right as enshrined by Article 10 ECHR.⁶¹

The element “necessary in a democratic society” requires a balancing exercise; considering the importance of freedom of expression for the political process in a healthy democracy, the standard to be applied must be a strict one.⁶² If the principle of political neutrality is applied in an absolute fashion, not allowing for a fair balancing of the relevant interests at stake, as generally suggested by sport-governing bodies, this might already raise a problem under Article 10 ECHR. The Court has shown in the cases against Turkey that such a balancing exercise is indispensable in order to comply with freedom of speech.⁶³ Another relevant recent example, even if dealing with Article 8 ECHR (right to respect for private life) and not with freedom of expression, is the case of Lacatus v. Switzerland,⁶⁴ in which the applicant challenged a Geneva law criminalizing begging in an absolute fashion. In its judgment, the Court held:

[…] the applicable legislation precluded a genuine balancing of the interests at stake and penalized begging in blanket fashion, irrespective of who was begging and whether he or she was vulnerable, the nature of the begging and whether or not it was aggressive, the location where it was carried out and whether or not the person concerned was part of a criminal network.⁶⁵

This absolute nature of the ban on begging was one of the decisive reasons for the Court to find that the criminal sanction imposed on the applicant was disproportionate.⁶⁶ Finally, unlike Articles 8, 9 and 11 ECHR, Article 10 § 2 refers to “duties and responsibilities” of persons exercising their rights. Such an inclusion is unusual for the Convention,⁶⁷ however, this does not mean that this wording suggests an inherently greater limitation to the freedom of expression or room for implied limitations in Article 10.⁶⁸ The notion of “duties and responsibilities” has been invoked in relation to different functions and professions. It is one of the elements that might influence the broadness of the margin of appreciation relied upon by the states; this will be addressed further in Sect. 3.3.3.

3.3.2 Narrow Margin of Appreciation Regarding Matters of Public Interest

The Court has repeatedly held that interference with freedom of expression can be justified only by “imperative necessities”, and that exceptions to this right must be interpreted narrowly.⁶⁹ Considering the importance of freedom of expression for the political process in a healthy democracy, the standard to be applied must be a strict one, “necessity in democratic society” supposing a “pressing social need”.⁷⁰ There is, in particular, little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in two fields: political speech, and matters of public interest.⁷¹ Accordingly, a high level of protection of freedom of expression, with authorities possessing a narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest.⁷²

A difficulty with the principle of political neutrality lies in the definition of “political”;⁷³ in particular, its distinction from acts and expression of solidarity with victims of human rights abuse or social inequalities, such as ethnic minorities. Faraz Shahlaei raises the question whether athletes’ gestures against racism, conflict, war, xenophobia, or in favor of inclusion, peace, and human rights, can really be recognized as a threat to public interest or a harm to the reputation of others.⁷⁴ The recent discussion on the rainbow, ‘One Love’, armband during the FIFA World Cup in Qatar (2022) is just one example illustrating the dilemma caused by the current legal regime.⁷⁵

3.3.3 Increased ‘Duties and Responsibilities’ of Athletes Due to Their Social Status

Article 10 ECHR guarantees freedom of expression, one of the key rights protected by the Convention. It follows from the wording and structure of Article 10 ECHR that—comparable to Articles 8, 9 and 11—Paragraph 1 of the provision sets out the right and Paragraph 2 the limitation to that right. Unlike Articles 8, 9 and 11 however, Article 10 § 2 refers to “duties and responsibilities” of persons exercising their rights. The notion of “duties and responsibilities” has been invoked in relation to different bearers of rights, including elected municipal officials,⁷⁶ civil servants,⁷⁷ lawyers, or the press, journalists, and editors.⁷⁸ The question is whether a new category, namely one covering athletes, has already been established by the Court or will be shaped in future.

In the Šimunić case, the Court stressed that the applicant, as a famous footballer, should have been aware of the possible negative impact of provocative chanting on spectators’ behavior, and should have abstained from such conduct.⁷⁹ This has been interpreted as an acknowledgement by the ECtHR of the role of athletes as political actors, as the main ‘vehicles’ of the social and political function of sport.⁸⁰ For this reason, the UN has suggested that sport-governing bodies should encourage athletes and players to use their influence and experience as role models and to be “leaders who contribute to promote peace and human understanding through sport”.⁸¹ This paragraph suggests that famous athletes are role models, and as a result of their special status in society, must be particularly careful about what they say publicly.

The role model function of athletes was also referred to by the Court in the Fédération Nationale des Associations et Syndicats Sportifs (FNASS) and Others v. France.⁸² The case concerned the requirement that certain sports professionals provide information detailing their whereabouts for the purposes of unannounced anti-doping tests. The Court held:

176. […] The Court also attaches weight to the impact which doping among professional athletes has on the amateur sporting world. It is widely recognized that young people identify with elite athletes, who act as role models for them. The UNESCO Convention clearly demonstrates the concerns surrounding the impact of doping on the sporting community in general, and in particular on the young. For that reason it stresses the importance of educational programs on the subject […] According to the Medical Academy, prevention requires the involvement of top-level athletes […] In the Court’s view, the fact that the conduct of elite athletes is liable to have a major influence on young people is further justification for the requirements imposed on them while they are registered in the testing pool.⁸³

Finally, the special nature of a career in professional sport was also stressed by the Court in the case of Michel Platini v. Switzerland, who was handed by CAS a four-year suspension from all football-related activities on the national and international level, and was fined for having allegedly accepted a salary supplement of 2 million CHF via a verbal contract with the President of FIFA, for activities as an advisor between 1998 and 2002. In this case, the Court took account of the specificity of the applicant’s situation, in that he had freely chosen a career in football, first as player then coach, and then in official capacities in football’s governing bodies, which were private entities and not directly bound by the Convention. The Court held, “while that career had no doubt endowed him with many privileges and benefits, it had nevertheless involved waiving certain rights, provided any contractual restrictions were agreed freely, and the applicant had not claimed the contrary.”⁸⁴

Judging from the assessment of the Court in these cases, it cannot be excluded that the special role model position of athletes and players imposes increased “duties and responsibilities”, and as a result, lowers their protection under the ECHR. This could lead to a new category of persons in relation to whom the states enjoy a wider margin of appreciation due to the special relationship that they maintain with their employers and the sport-governing bodies, imposing on them a ‘réserve de fonction’ comparable to that of municipal officials, civil servants, lawyers, or the press.

3.4 Case Study: Comparison Between the CAS and the ECtHR Approach Regarding Calls for Boycott

In the absence of directly relevant case law of the ECtHR in the field of sport, it is appropriate to analyze jurisprudence in related fields in order to find inspiration and to draw conclusions for potential applications concerning the principle of political neutrality.

An example of an application of this principle brought before the CAS is the case of Jibril Rajoub v. FIFA, in which the President of the Palestinian Football Association was fined 20,000 CHF and was banned from attending matches for 12 months due to inciting a blatant protest during a match between Argentina and Israel in Jerusalem.⁸⁵ Mr. Rajoub publicly called for members of the Argentinian national team to boycott this match. Mr. Rajoub was understood by the CAS to be intentionally targeting the football icon Lionel Messi:

[…] we will launch, as of today, a campaign targeting the Argentinian Federation, and in particular targeting Messi, who has tens of millions of fans in Arab and Islamic countries. [For his fans] he used to be a symbol and big deal. We are going to target Messi, and we are going to ask everybody to burn their Messi T-shirts and pictures, and to wash their hands of him.⁸⁶

While CAS implicitly admitted the right of the appellant to declare publicly his political opinion, by affirming that “FIFA’s interest in sanctioning such conduct should be balanced against Mr. Rajoub’s interest to exercise his freedom of speech”,⁸⁷ it nevertheless concluded that:

[…] an association – based on the special contractual legal relationship – may impose stricter duties on its members than the ones imposed on citizens by criminal law […] associations in general have large freedom to manage their own affairs and Mr. Rajoub can freely opt-out of his obligations as a FIFA official by resigning from any role that subjects him to FIFA’s rules and regulations.⁸⁸

Mr. Rajoub has, according to our knowledge, not appealed to the Swiss Federal Tribunal, followed by an appeal to the ECtHR. It is noteworthy to mention, however, that in similar circumstances, the Court has held against the applicant, namely in Willem v. France.⁸⁹ In this case, a left-wing mayor of a small French commune proposed to boycott Israeli products, in particular, fruit juice, as a protest against the policy of Ariel Sharon, the then Prime Minister, in the occupied Palestinian territories.⁹⁰ His proposal was featured in a local newspaper and he added more details on the website of the commune.⁹¹ He was later convicted of provocation and discrimination. According to the ECtHR, the interference was pursuant to the protection of the rights of others, in particular the rights of Israeli producers.⁹² In the Court’s view, calling on the municipal services to boycott Israeli products amounted to discrimination.⁹³

It is suggested here that the position of Mr. Willem, as a mayor of a French municipality, is comparable with the relationship that Mr. Raoub, the President of a national football association, maintains with FIFA, which enjoys a monopoly position in football.⁹⁴ As a result, the CAS judgement seems compatible with the ECtHR’s findings in the Willem case, even more so considering the extreme nature of the language used by Mr. Rajoub. However, Harris, O’Boyle and Warbrick consider it conceivable that the Court would have given greater protection to free speech in the case of a private citizen or NGO, instead of a municipal official, and would have found a violation.⁹⁵ If this also applies to athletes and players calling for a boycott, the outcome might be at odds with the CAS’ ruling in the Rajoub case.

The Court went exactly in this direction in a more recent case where the call for a boycott against products from Israel came from civil society. In the case of Baldassi and Others v. France,⁹⁶ the applicants, who were members of a local collective supporting the Palestinian cause (they were part of the international campaign “Boycott, Divestment and Sanctions” launched by NGOs in 2005) were prosecuted for calling on customers in a market not to purchase products from Israel. The prosecution followed a subsection of the Law on Freedom of the Press, prohibiting incitement to discrimination against a group of persons on account, inter alia, of their origin or belonging to a specific nation.⁹⁷ The applicants were acquitted at first instance – on the grounds that the subsection on which the prosecution had been based did not apply to the facts of the case – but on appeal, a suspended fine of one thousand euros was imposed on them, and they were ordered to pay damages to the associations appearing as civil parties.⁹⁸

In its judgment of 11 June 2020, the ECtHR held that a boycott is primarily a means of expressing a protest and, as a result, a call for a boycott, which is aimed at communicating protest opinions while calling for specific protest actions, is in principle covered by the protection set out in Article 10 of the Convention.⁹⁹ The Court recognized that the present case was different from the Willem case, in that the applicants here were ordinary citizens who were not restricted by the duties and responsibilities arising from a mayoral mandate and whose influence over consumers was not comparable to that of a mayor over his municipal services. Moreover, the applicants had not been convicted of making racist or antisemitic remarks or inciting hatred or violence, or of being violent themselves or causing damage. Nor had the market claimed damages before the domestic courts.¹⁰⁰

The Court further held that, in convicting the applicants, the domestic court had failed to analyze the actions and remarks prosecuted in light of those factors and had concluded, broadly, that the call for a boycott had amounted to incitement to discrimination and, “was in no way covered by the right to freedom of expression”.¹⁰¹ It also held that the actions and remarks of the applicants had concerned a subject of public interest (compliance with public international law by the state of Israel and the human rights situation in the occupied Palestinian territories), and had been part of a contemporary debate in France and throughout the world. Secondly, the actions and remarks in question had fallen within the ambit of political or militant expression. It was in the nature of political speech to be controversial and often virulent. That did not diminish its public interest, provided that it did not cross the line and turn into a call for violence, hatred, or intolerance.¹⁰² The Court ultimately concluded that there had been a violation of Article 10 ECHR.¹⁰³

The question remains whether, in the case of a call for a boycott coming from a high official of a national or international sports federation, the Court would confirm its approach in the Willem case, and whether, if such a call was made by an athlete or player, it would follow its approach in the Baldassi and Others case, and be tougher on states in applying and respecting freedom of expression.

4 Conclusion

The Šimunić case is significant insofar as it stresses that there are limits to the freedom of expression that are applicable to the field of sport. As has been mentioned above, the Court did not engage in a substantive discussion on the principle of political neutrality in the three cases against Turkey, but chose to adopt a procedural approach by limiting itself to hold that the assessment made by the bodies of the TFF had not complied with the requirements of Article 10 ECHR; future cases might show whether the Court is willing to address the conformity of this principle with Article 10 ECHR. A future case may also reveal to what extent the generally broad protection of freedom of expression by the Court would accommodate or challenge the principle of political neutrality in sport.¹⁰⁴

This chapter has argued that the Court’s decision would likely depend on the broadness of the margin of appreciation that is granted to states in their supervision of the sport-governing and arbitration bodies in assessing matters of freedom of expression in disciplinary proceedings (as well as criminal proceedings) of their ordinary courts. In both situations, the special responsibilities of athletes and players as role models in society would have to be taken into consideration. Famous athletes are heroes, especially in the eyes of the youth and thus have to assume a particular role model responsibility. In other words, as a result of their particular social position, they might have to accept a higher degree of “duties and responsibilities” under Article 10 ECHR than normal citizens. The sport-related case law seems to indicate a certain trend of the Court to consider professional athletes as falling into a category where the States Parties to the ECHR enjoy a broader margin of appreciation; in other words, their protection under Article 10 ECHR might be reduced.

Another relevant dimension is the practice of the ECtHR to grant only a narrow margin of appreciation to States Parties in matters of public interest or regarding the expression of political opinions and views. Moreover, the circumstances of each individual case and the relative weight of the interests of the athlete or player, on the one hand, and the sport-governing body, on the other, would have to be considered and balanced against each other.¹⁰⁵ In this regard, the interests of a restriction might carry more weight when the athlete expresses during a competition, rather than outside the arena or on social media, or in a situation where the athlete acts as a representative of a team or a nation.¹⁰⁶ Other factors to be considered include whether speech or gestures are at stake, the actual content of the message conveyed, as well as the severity of the sanction and its nature (i.e. criminal or only disciplinary). If it is disciplinary, will the sanction involve a fine or a ban? If there is some form of ban, should it be for life or a temporary suspension?

A key difficulty with political neutrality lies in the ambiguous definition of “political”;¹⁰⁷ in particular, its distinction from acts and expressions of solidarity with victims of human rights abuse or social inequalities, such as ethnic minorities. It is suggested here that symbolic tributes to the Black Lives Matter movement, for instance, can hardly be qualified as “political” statements, but are rather expressions of sympathy and humanitarian concerns over certain events. In such circumstances, it is questionable whether sport-governing bodies can invoke this principle at all. In other words, can one remain neutral when facing human rights abuses, discrimination, and other inequalities? The recent discussion on the rainbow armband during the FIFA World Cup in Qatar has shifted this issue to the forefront of sport news.

In a case where the principle of neutrality is applied in a strict fashion by sport-governing bodies, not leaving room for any appropriate balancing of the relevant interests at stake, the Court could find this problematic in light of the procedural (formal) requirements of Article 10 ECHR; as in the three cases against Turkey, or the Lacatus case. The conclusions of the Court in the latter case indicate that an absolute ban, here on begging, without taking into account the specificities of the individual case, might lead to a violation of the Convention.

The current state of affairs with regards to international sport involves an imbalance between the rights and obligations of athletes. One the one hand, professional athletes face increased “duties and responsibilities” due to their position as role models in society; on the other, they have no choice but to adhere to the principle of political neutrality imposed on them by powerful sport-governing bodies, which often benefit from monopoly positions within their sport and have the power to impose severe disciplinary sanctions. In addition, athletes might feel a tension between general calls to increase public speech, encouraging them to use their influence to promote peace,¹⁰⁸ and the principle of political neutrality in sport, which has the tendency to restrict public speech. Finally, the position of athletes is further weakened in practice by their duty to adhere to contract clauses that generally exclude the possibility to complain before ordinary courts in favor of the jurisdiction of CAS for potential disputes with a national or international federation.¹⁰⁹

This chapter argues there is no compelling reason that would prevent the Court to close this protection gap in the future and play an even more significant role in these domains with the aim of finding a fair balance between the rights and duties of athletes and players. The Court’s role might turn out to be even more significant in light of the fact that CAS’s jurisdiction is not limited to European athletes. Thanks to the appeal open to the Swiss Federal Tribunal for well-defined complaints,¹¹⁰ CAS could potentially become a global watchdog for human rights in sport, including for important questions related to freedom of speech.¹¹¹