Governmental interference in global sport - Why Kuwait is still in the Olympic wilderness

Published 15 June 2018 | Authored by: Andrew Moroney

The suspension of an athlete or nation from participating in the Olympic Games is commonly considered to be the ultimate sporting sanction. Whilst the suspension of Russia from PyeongChang 20181 (and its reinstatement immediately afterwards2) has grabbed recent headlines, Kuwait remains subject to a ban imposed by the International Olympic Committee (“IOC”) in 2015.

This article considers the reasons behind Kuwait’s suspension and whether the end is in sight, as well as the wider context of governmental interference in global sport. Specifically, it looks at:

  • Background

  • Relevant provisions of the Kuwaiti Sports Legislation, IOC Charter and the FIFA Statues

  • Subsequent developments

  • The wider context of governmental interference

  • Commentary

Background

Kuwait’s National Olympic Committee (“NOC”) is no stranger to Olympic exile, having been suspended by the IOC in 19863 for political interference pursuant to legislation enacted as far back as 19784. More recently, Kuwait was warned by the IOC in 2007 that its sports legislation permitted governmental interference in the internal functioning of its NOC and other sporting federations, in violation of the Olympic Charter. When Kuwait failed to address this issue by the IOC’s deadline of 31 December 2009, its NOC was suspended5. This ban was lifted shortly before London 2012 in reliance upon the Ruler of Kuwait, His Highness Sheikh Sabah Al-Ahmad Al-Jaber Al-Sabah, pledging that Kuwait’s sports law would be amended to ensure autonomy for Kuwait’s NOC and sporting bodies.

Further sports legislation was enacted, however, in early 2015 that conferred upon the Kuwaiti Sports Ministry the power to assume control of national sporting bodies, as well the ability to control financial matters6. Consequently, Kuwait’s NOC was disbanded by the Kuwaiti Sport Ministry, purportedly due to financial irregularities, as were nine other national federations including basketball, football, handball, judo and swimming7. Interim committees were established to take over the administration of such sports, headed by figures widely viewed as being loyal to the Kuwaiti Sports Ministry8. The IOC took the view that Kuwait had failed to ameliorate the position by the IOC’s deadline of 27 October 2015; and, its NOC was suspended again. This came shortly after FIFA had imposed its own suspension on Kuwait’s football association (“KFA”), having failed to meet FIFA’s 15 October 2015 deadline for corrective action9. Sixteen further international sports federations subsequently followed suit.

It has been speculated in the press that the offending 2015 sports legislation was a political response to the Kuwaiti Sports Minister (and former President of the Asian Shooting Confederation), Sheikh Salman, losing an election to become the President of the International Shooting Sport Federation; a defeat (subsequently upheld by the Court of Arbitration for Sport - CAS10) which he blamed on allies of his cousin Sheikh Ahmad - the Kuwaiti IOC member, the President of the Olympic Council of Asia and the President of the Association of National Olympic Committees and the President of Olympic Solidarity, as well as being (at that time) a board member of the Kuwait NOC and a member of the FIFA executive committee11. In a move widely considered to be retaliatory, the Kuwaiti Sports Ministry filed a $1.3 billion lawsuit in January 2016 against Sheikh Ahmad and 14 other board members of the Kuwaiti NOC alleged to have actively sought the suspensions from the IOC and FIFA12.

Relevant provisions of the Kuwaiti Sports Legislation, IOC Charter and the FIFA Statues

The offending provisions of the Kuwaiti Sports Legislation enacted in 2015 reads as follows:

Article 4

The [Sports Ministry] in order to achieve its objectives shall practice the following competencies:

  1. To…coordinate the works of [the Olympic Committee and the sports unions and clubs]

Article 14

The Sports organisations shall be subject to the control of the [Sports Ministry] regarding all the financial resources, whatever its source and this control shall be undertaken by financial inspectors…

Article 15

The financial inspectors shall have the right to enter the sports establishments which are subject to the control of the [Sports Ministry] and review their records. They shall apprehend the cases in violation of the rules of this law, draft the necessary minutes and refer them to the Board [of the Ministry of Sport] to undertake what is appropriates in heir [sic] respect.

The basis for the IOC ban is a breach of the Olympic Charter (the wording of which remains unchanged since the ban was imposed in 2015) as follows13:

Principle 5 - Fundamental Principles of Olympism

Recognising that sport occurs within the framework of society, sports organisations within the Olympic Movement shall have the rights and obligations of autonomy, which include freely…determining the structure and governance of their organisations, enjoying the right of elections free from any outside influence…

Rule 27.5

In order to fulfil their mission, the NOCs may cooperate with governmental bodies, with which they shall achieve harmonious relations. However, they shall not associate themselves with any activity which would be in contravention with the Olympic Charter. The NOCs may also cooperate with non-governmental bodies.

Rule 27.6 - Mission and role of the NOCs

The NOCs must preserve their autonomy and resist all pressure of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.

Rule 27.9 – Mission and role of the NOCs

…the IOC Executive Board may take any appropriate decisions for the protection of the Olympic Movement in the country of an NOC, including suspension of or withdrawal of recognition from such NOC if…any act by any governmental or other body causes the activity of the NOC or the making or expression of its will to be hampered…

FIFA’s ban was predicated on a breach of the following provisions of the FIFA Statutes in force at that time14:

Article 13 - Member’s obligations [now Article 14 in the current FIFA Statutes]

  1. Members have the following obligations:

  1. To manage their affairs independently and ensure that their own affairs are not influenced by any third parties;

Article 17 - Independence of Members and their bodies [now Article 19 in the current FIFA Statutes]

  1. Each Member shall manage its affairs independently and with no influence from third parties.

  2. A Member’s bodies shall be either elected or appointed in that Association. A Member’s statutes shall provide for a procedure that guarantees the complete independence of the election or appointment.

  3. Any Member’s bodies that have not been elected or appointed in compliance with the provisions of par. 2, even on an interim basis, shall not be recognised by FIFA.

  4. Decisions passed by bodies that have not been elected or appointed in compliance with par. 2 shall not be recognised by FIFA.

Interestingly, and no doubt partly in response to the Kuwait issue, the following wording has been added to Article 14 (previously Article 13) of the current FIFA Statutes to provide further clarity as follows15:

Article 14 – Member associations’ obligations

  1. Violations of par.1(i) may also lead to sanctions, even if the third-party influence was not the fault of the member association concerned.

Subsequent Developments

In response to its censure by the international sporting community, Kuwait went on the offensive. In November 2015, the Kuwaiti government terminated the OCA’s long-term agreement leasing land for its headquarters in Kuwait City and conferring diplomatic immunity upon its staff16. In June 2016, the Kuwait government appealed the IOC suspension in the Swiss Civil Courts and claimed $1 billion compensation for losses flowing from the alleged unjust imposition of a suspension in the absence of an appropriate investigation. The appeal and compensation claim were dismissed in August 2016 and Kuwait was ordered to pay $11,500 towards the IOC’s legal costs17. Also in June 2016, the Court of Arbitration for Sport (“CAS”) rejected an appeal brought by a number of Kuwaiti football clubs (including the Kuwaiti Premier League champions, Kuwait Sporting Club) against the FIFA suspension18.

In addition to legal proceedings, Kuwait has made frequent unsuccessful appeals to the IOC (and FIFA) for its suspension to be lifted. Numerous meetings have also taken place between Kuwaiti officials and the IOC, most notably that mediated by the United Nations in January 2016, at which the parties were reported to have reached an agreement in principle that Kuwait reneged upon at a later date19.

On 12 December 2016, Kuwait’s newly-elected parliament voted by a majority of over two thirds to amend the relevant sports legislation to facilitate re-admission to international sport20. This vote unfortunately came too late for Kuwait to take part in the AFC Asian Cup Qualification final round, given that the deadline imposed by the Asian Football Conference (“AFC”) for the KFA to be readmitted to FIFA membership was 18 December 2016.

It is understood that in early 2017 the IOC sent a letter to the Kuwaiti Sports Ministry setting three conditions for Kuwait’s re-acceptance into the Olympic Movement21:

  1. all relevant sport legislation must be amended in order to comply with the Olympic Charter;

  2. all board member changes imposed upon Kuwait’s NOC and other sporting bodes must be revoked; and

  3. all ongoing domestic and international cases against the IOC and other international sporting bodes must be dropped.

In February 2017, Sheikh Salman resigned from his position as Sports Minster two days before he was due to face a Parliamentary vote of no confidence. This development was widely viewed as a fillip to Kuwait’s ambitions to end its exile from international sporting competition22.

In April 2017, the Kuwait Shooting Federation (“KSF”) successfully overturned its suspension from international competition imposed by the International Shooting Sport Federation (“ISSF”). The reasoning given by CAS for its decision was that:

[T]his Panel does not seek to condone the action of the Kuwaiti Government in any way at all, however the suspension or expulsion of a member by an International Federation is a serious matter and must be done in accordance with its own constitution and in accordance with the applicable law…the reasons retained by the ISSF to suspend KSF are not justified by any applicable rule.23

Whilst this CAS decision may be of limited wider application, given that it primarily focussed on the ISSF’s internal procedures, it may open the door to further challenges should the IOC ban continue into the longer term on the basis of it being unjust for Kuwaiti sporting federations to remain suspended on indefinite terms.

On 4 December 2017, Kuwait finally bowed to mounting domestic and international pressure by enacting new sports legislation purporting to replace all previous such laws and thus prevent governmental interference with Kuwaiti sporting bodies. The wording of the new sports law states that24:

Article 4

The [Kuwaiti NOC, Kuwaiti Paralympic Committee, national sports federations and sports clubs] shall solely have the right to set up their statutes that is [sic] compatible with the international standards. The general assemblies of these sports organisations shall be the competent authority in this regard. The statutes shall have to be in conformity with the Olympic Charter and the concerned statutes of the national and international sports federations and relevant international standards.

Article 12

“In the application of the rules of this Law, it is mandatory to observe, to respect the principles of sports’ independence and the international standard of relation [sic], which include the principles and rules decided in the Olympic Charter and the statutes of the concerned national and international sports federation and their requirements for the relevant international sports organisations and the World Anti-Doping Code.”

Article 14

The Kuwaiti Anti-Doping Agency enjoys full legal personality and independence in undertaking its competencies…

Article 34

…The general assembly of the national sports federation is deemed its high authority and shall assume independently all the authorities and competencies assigned to it according to the statutes of the national sports federation as approved by the concerned international sports federations.

Article 38

…The general assembly of the [Kuwaiti] Olympic Committee shall be considered the supreme authority of the Olympic Committee and shall exercise independently all authorities and competencies assigned to it according to its statutes as approved by the International Olympic Committee.

Article 49

…This shall be without prejudice to the right of resort to the International Court of Arbitration for Sports (CAS) in any degree of litigation in sports disputes.

Article 50

The [Sports Ministry] and the [Kuwaiti NOC, Kuwaiti Paralympic Committee, national sports federations and sports clubs] shall work together…with mutual understanding and respect for the competencies and responsibilities assigned to each party in accordance with the rules of this law and international standards of relation.

In light of this new legislation being enacted, FIFA lifted its ban on 6 December 201725. However, despite subsequent meetings taking place between Kuwaiti officials and the IOC26, the Olympic ban remains in place as at the date of publication of this article.

The wider context of governmental interference

Sporting bodies are hard-wired to protect their autonomy to govern and regulate their sport, as enshrined in the Olympic Charter. A distinct body of law, lex sportiva, has developed over time to underpin the doctrine that sporting bodies are best placed to understand the unique circumstances of sport and manage them in a way that maximises wider societal benefits. The Olympic Charter promotes collaboration between sporting bodies and government, but prohibits interference27. This begs the question as to where the line is between benign and undue governmental influence. Reasonable conditions attached to the receipt of public funds by sporting bodies for grassroots investment is an obvious example of the former, whereas a government retaining unfettered power to disband national sporting federations is an obvious example of the latter. However, there are a myriad of circumstances falling in between.

Kuwait is not alone in finding itself on the wrong side of the IOC due to governmental interference in sport:

  • In July 2007, Panama was suspended by the IOC for governmental interference in the running of its NOC. The ban was lifted in April 2008 in time for the nation to compete at Beijing 2008. It was threatened with a further suspension in January 2011 when the Panamanian President demanded the resignation of NOC committee members, but this suspension was averted when the issue was resolved to the IOC’s satisfaction28.

  • In January 2011, Ghana’s NOC was suspended by the IOC for failing to amend its sports law to prevent the Ghanaian government from appointing Presidents to its NOC and other national sporting federations. The ban was lifted in October 2011 when a new sports law was enacted to prevent political interference, allowing the nation to compete at London 201229.

  • In June 2011, the IOC warned the Indian Sports Ministry that compelling national sporting federations to adopt mandatory eligibility requirements for officials constituted undue governmental interference30. When the Indian government ignored this warning and the Olympic Association separately elected officials accused of corruption, the Indian NOC was suspended by the IOC for non-compliance with the Olympic Charter in December 2012. Somewhat uniquely, the IOC lifted this ban lifted four days into Sochi 2014 when new officials were elected, causing the Indian flag to be belatedly raised in the Olympic Village31.

  • In 2015, Sri Lanka was warned by the IOC that it faced suspension if it did not revise proposed sports legislation that barred high-ranking officials from standing for re-election by the end of that year. This governmental interference was cited as a major reason for Sri Lanka being stripped of its hosting rights of the 2017 Asian Youth Games32.

  • In August 2016, Kenya’s Sports Ministry disbanded its NOC and transferred its duties to Sports Kenya, in response to alleged mismanagement of Team Kenya at Rio 2016 by senior NOC officials. In March 2017, the IOC cut funding and threated suspension of the newly-formed NOC when it refused to accept IOC-requested governance reforms33.

  • Recent reports suggest that Saudi Arabia is coming under increased scrutiny from the IOC and FIFA in connection with a growing trend of appointments for government-backed appointees to the Kingdom’s national sports federations34. A suspension from international sport would impact the Kingdom’s successful national and club football teams and may also affect its progressive economic reforms, of which sport - and in particular the privatisation of its top-tier football clubs - is a central component, owing to sport’s increasingly valuable geo-political status in the GCC region.

The IOC is, therefore, not afraid to adopt a robust approach if it considers that the Olympic Charter is being undermined by undue governmental interference. One particular area it has sought to control is the fall-out when relations between national governments and NOCs breakdown. In this regard the IOC has a number of weapons at its disposal, including proactive engagement with the parties, interim funding cuts, the threat of a suspension, and ultimately the imposition of a suspension. The political unpopularity of presiding over a nation suspended from the Olympics more often than not prompts governments to take the necessary remedial action.

Commentary

The fact that the IOC has not yet followed FIFA’s lead in lifting its ban on Kuwait is an intriguing epilogue to this rather messy affair. The reasons for this are not clear, however it may be because Kuwait has not yet complied with the pre-conditions for re-acceptance (outlined above) to the IOC’s satisfaction. It may also be symptomatic of the deterioration in the relationship between Kuwait and the IOC. A string of previous broken promises and the instigation of a $1 billion lawsuit may have eroded the IOC’s trust in Kuwait delivering meaningful and lasting change this time around.

Alternatively, some commentators consider that FIFA simply lifted its ban too early and without conducting proper due diligence, motivated instead by a desire to avoid a diplomatic crisis. By securing Kuwait’s participation in the 2017 Arabian Gulf Cup (which commenced a fortnight after FIFA’s ban was lifted) and installing Kuwait as the last-minute host in place of Qatar. The participation of Saudi Arabia, Bahrain and the United Arab Emirates was secured; such nations having refused to travel to Qatar in light of the on-going diplomatic crisis35.

What is certain is that the impact on Kuwaiti sport has been marked. Kuwaiti athletes were unable to represent their country at the 2010 Summer Youth Olympics, Rio 2016, and PyeongChang 2018; having to compete instead as neutral athletes under the Olympic flag. Indeed, Kuwait was denied its first ever Olympic gold medal when Kuwaiti shooter Fehaid Al-Deehani claimed the dubious honour at Rio 2016 of becoming the first athlete to win a gold medal as an Independent Olympic Athlete. Similarly, Kuwaiti football teams and clubs have been barred from international competitions (including the World Cup 2018 qualifiers and the AFC Asian Cup 2019) and the national team’s FIFA ranking has plummeted to 160 (having been as high as 24 in 1998). To add insult to injury, all IOC and FIFA financial development assistance has been stopped during the periods of suspension, which has severely impacted the finances of Kuwaiti sport. Even more tragic is the impact on Kuwait’s grassroots participants and youth, who have cruelly been denied sporting heroes to aspire to and sporting goals to aim for, as well as their training programmes and facilities being starved of cash from the IOC and FIFA. Many observers talk of Kuwait’s ‘lost generation’ of talent and feel that lasting damage to Kuwait’s sport has been done36.

It is difficult not to draw comparisons with Russia’s 85 day IOC suspension for systemic manipulation of anti-doping rules which the IOC President Thomas Bach described as “an unprecedented attack on the integrity of the Olympic games and sport”. There is little doubting that a Russian team appeared at PyeongChang 2018 in all but name (and arguably in name, being "Olympic Athletes from Russia", as compared to Kuwait’s "Independent Olympic Athletes"), with its 168 athletes (only 64 less than at its home Olympics in Sochi 2014) being cheered on by fans wearing Russian kit, waving Russian flags and singing the Russian anthem. Kuwait’s continuing IOC suspension, which in contrast to the Russian suspension does not implicate any individual athletes, does seem to disproportionately punish Kuwaiti athletes for what has been termed a power struggle between Kuwait’s ruling elite37.

Now that certain roadblocks to reinstatement have been removed (as outlined above), it seems likely that the IOC ban will be lifted; however it remains to be seen when this will be and what further steps Kuwait will need to take to achieve it.

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About the Author

Andrew Moroney

Andrew Moroney

Associate 

Andrew recently joined Al Tamimi & Company’s Sports Law and Events Management team in Dubai. He brings a broad array of experience advising clients in the sports and events sector on commercial, disputes and regulatory matters. He regularly advises corporate entities, governing bodies, individuals and foreign law firms on matters spanning football, cycling, horseracing, motorsports, golf and tennis. Andrew also has a particular interest in the growing eSports industry.

Before joining Al Tamimi & Company, Andrew was Legal Counsel at The English Football Association, primarily focussed on regulatory matters, dispute resolution and risk management. Highlights included re-drafting The FA Rulebook, acting as the Secretariat for the FA Rule K arbitration process and handling a number of cases heard by the UEFA Disciplinary Committee, the FIFA Disciplinary Committee and the Court of Arbitration for Sport.

Prior to that, Andrew worked in the City of London at a large European law firm, where he gained further experience advising on football, rugby, horseracing and boxing clients on disciplinary and anti-doping matters.

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