Politics and sport: How FIFA, UEFA and the IOC regulate political statements by athletesCharles Maurice
For sports fans in Europe, 2016 sees the latest instalment of the bi-annual collision of the Olympic and football calendars, with the hosting of the European Football Championship in France in June and July, followed by the Summer Olympic Games in Rio de Janeiro in August. Granted, two very different events and audiences, but each event comes with its own profile and ability to appeal to large groups of people, elements which make them both a sponsor’s dream and a potential platform for the expression of ideas and values.
High-profile examples abound. To place this issue into context, consider Tommie Smith and John Carlos’ black-gloved stance1 against racial inequality in the 1968 Summer Olympics, or (momentarily stepping outside the football and Olympic spheres) members of the Zimbabwean cricket team wearing black armbands citing the “death of democracy in our beloved Zimbabwe”.2 Or, more recently, the “hands up, don’t shoot”3 gestures made by the St Louis Rams in their 2014 NFL game against the Oakland Raiders. In each case, these examples demonstrate the unique position that athletes occupy, especially given press coverage of major events.
Careful policing is required therefore to preserve value for official sponsors and to ensure that the focus of each event remains on sport rather than any other political, racial or cultural objective. Whether this is actually achieved in each case is a different question, but governing bodies have attempted to address these issues through enshrining certain overriding principles as core parts of the way events are staged and participants take part.
A clear challenge amongst all of this is to understand exactly what it is that these principles are designed to regulate. A ‘political statement’ is inherently subjective by its very nature and in most instances (as we will see) the relevant rules are wide enough to capture the more obvious demonstrable acts (e.g. those noted above) as well as the more subtle gestures of solidarity with a particular cause.4 In short, any statement of a non-sporting nature may well fall for consideration under the relevant rules, and the absence of a clear definition of what constitutes a ‘political statement’ brings an additional element of subjectivity into the interpretation of the rules themselves.
With 2016’s key sporting events in mind, this article compares the approach taken by FIFA, UEFA and the IOC in preventing athletes from making political statements in competition, and examines whether the approaches taken by each governing body are capable of consistent application.
FIFA – a ‘belt and braces’ approach
As if further confirmation was required, one need only type ‘FIFA’ and ‘politics’ into the nearest internet search engine to confirm that the two terms often appear in the same sentence. That the governance of football itself appears to be so political does nothing to alter this perception, and it is hard at times as an observer to see how FIFA can advocate that football remains apolitical when as an organisation these lines appear to be less clear.
From a player’s perspective, FIFA’s explicit rules on political statements in those matches and competitions falling under FIFA’s direct and indirect5 jurisdiction focus in particular on the display of messages on clothing. The FIFA Laws of the Game6 list, at Law 4, the basic compulsory equipment to be used by each player (comprising playing jersey, shorts, stockings, shinguards and footwear), which in turn is furthered by a decision of the International FA Board clarifying Law 4, which states that:
“the basic compulsory equipment must not have any political, religious or personal slogans, statements or images… The team of a player whose basic equipment has political, religious or personal slogans, statements or images will be sanctioned by the competition organiser or by FIFA.”
The same also applies to undergarments worn by players, and it is reasonably clear therefore that, as a player, wearing a political statement on your shirt or removing ones shirt or other item of clothing to reveal a statement underneath is going to land you in trouble with FIFA.
However, whilst FIFA is clear as to how officials should deal with these incidents during the course of a game and how cautions can be issued to players,7 what is more open-ended is the range of sanctions available to FIFA after the game. Here, the remit of the rules are widened from explicit reference to player clothing to include the full range of human behaviour, including political statements not simply confined to messages on clothing. These sanctions are found in the FIFA Disciplinary Code and are outcome-focused rather than prohibiting specific acts. For example, a player inciting violence or hatred (s.53), provoking the general public (s.54), carrying out offensive behaviour (s.57) or carrying out discriminative action (s.58) may well cover most forms of political statements within a game and all carry with them the threat of a fine for the player or, in some instances, lengthy bans.8 One example of this which readers may remember is Josep Simunic’s 10 game ban9 and CHF 30,000 fine for his pro-Nazi chants following Croatia’s World Cup qualifying play-off victory over Iceland in 2013.
The provisions of the FIFA Disciplinary Code echo the provisions of the FIFA Code of Ethics (e.g. s.23) and the eleven core principles set out at s.3 of the Code of Conduct more generally. From a legal perspective the various documents comprising the laws and regulations of FIFA should be viewed in conjunction with each other, rather than on a stand-alone basis.10 The net effect of this is that, in relation to political statements by players, through the interplay (and considerable overlap) between the various FIFA documents, FIFA gives itself some ability to mould its rules and regulations to the fact matrix before it in each case in order to achieve the desired outcome or sanction.11
A sensible approach (and heady luxury as a lawyer!) when one considers the many forms a political statement can take, but perhaps one that is unhelpful in achieving any form of consistent response. As with UEFA and the IOC (more of which below), FIFA’s response to political statements made by players is, by its nature, subjective. Some instances, such as the Argentinian team12 unfurling a banner in support of its country’s claims on the Falkland Islands have clear political motivation, however others, such as the Nicolas Anelka “quenelle” incident13 from 2013 require a judgement call as to underlying motivation.14 Whatever one’s view of these incidents, it becomes clear that because FIFA does not define what constitutes a ‘political’ slogan, statement or image (or indeed what constitutes offending ‘dignity or integrity’), FIFA is left to determine what it considers to be the actual nature of each statement. At the same time, defining these principles risks exclusion through artificial construct, and it is certainly a valid proposition to suggest that rules need to be capable of evolution to match the unpredictability of human behaviour. Either way, the rules as they stand rely on consistency of application from FIFA, and in some instances that has appeared to present a challenge.15
UEFA – more specific but still a subjective test
And what of UEFA? As the governing body for football at European level, for those matches and competitions organised by UEFA, the UEFA Statutes and related regulations will apply to any political statements made by players in any such context.16 Articles 1 and 2(a) of the UEFA Statutes make it clear that UEFA is:
“neutral, politically and religiously”, with an overriding objective to “promote football in Europe in a spirit of peace, understanding and fair play, without any discrimination on account of politics, gender, religion, race or any other reason”
These sentiments filter through into the detailed rules that apply to every match and competition organised by UEFA.
The UEFA Disciplinary Regulations17 contain an obligation on players to respect the FIFA Laws of the Game, and whilst the drafting is somewhat nebulous (note that the word ‘respect’ is used rather than ‘comply with’), it seems likely that the net effect of this wording would be to bind players in UEFA competitions to the applicable FIFA rules governing slogans on compulsory equipment noted above.
Whether this is actually needed or not (or ever tested in practice) is a moot point, especially as the UEFA Disciplinary Regulations go into further detail as to what constitutes a breach of the UEFA “principles of ethical conduct, loyalty, integrity and sportsmanship”, to which players must adhere. Specific breaches include “conduct [which] is insulting or otherwise violates the basic rules of decent conduct”18 and where a person “uses sporting events for manifestations of a non-sporting nature”,19 and these examples alone are likely to afford UEFA a right of direct action against players who make political statements during the course of a game or tournament.
Despite this application, UEFA deems that further detail is required, and UEFA has specific sanctions available in the event a person “insults the human dignity of a person or group of persons on whatever grounds, including skin colour, race, religion or ethnic origin”,20 or breaches the prohibition on “all forms of ideological, political and religious propaganda”.21 In each case, players engaging in these types of activities at Euro 2016, for example, run the risk of a ban lasting for at least ten games, or any other appropriate sanction,22 which would certainly prevent participation in the rest of the tournament. This is in addition to the more general disciplinary measures available to UEFA for breach of various UEFA regulations more generally, which range from a simple warning, through to a ban on all football-related activities23
UEFA, like FIFA, has a wide measure of discretion to apply its rules to fit certain fact patterns – deliberately political statements by players during the course of a game or tournament will be easily captured, however in the same way as we can see with the FIFA rules, so too is behaviour that is closer to the margins of what might ordinarily be acceptable.24 If anything, however, the UEFA rules are clearer than those set by FIFA, and whilst they remain inherently subjective, the greater detail and (frankly) clearer drafting means that players and the UEFA member associations under which they fall ought to have a clearer understanding of where the relevant boundaries lie (to the extent this makes any difference).
IOC – policing the greatest platform of all
For those who have never had the pleasure, the Olympic Charter makes for interesting reading. In its current guise, the Olympic Charter is 100-odd pages of rules and regulations (rather refreshingly, when compared to the documents above, all found in one place) which govern the Olympic Movement, including the way the Summer and Winter Games are conducted. As well as the International Olympic Committee (“IOC”), International Sports Federations, National Olympic Committees (“NOCs”), the Olympic Charter also applies to the Organising Committee for the Olympic Games, along with the myriad constituent athletes belonging to the NOCs.
Compliance with the Olympic Charter therefore is core to participation in the Olympic Games and, as various athletes have found to their cost in games gone by, the IOC is granted various enforcement powers which invariably mean that infringing athletes are sent home with their tails between their legs. Crime and Punishment it is not, but the rather grandly entitled “measures and sanctions” section of the Olympic Charter25 leaves the reader in no doubt of the ultimate power given to the IOC in infringement situations – simply, if you as an athlete are found to have infringed the Olympic Charter, the IOC can end your Olympic dream in more ways than one.26
This is why it is so important that the IOC maintains a consistent application of the Olympic Charter when it comes to dealing with infringements, and why it is all the more interesting to see how those components of the Olympic Charter which govern advertising, demonstrations and propaganda are applied. These elements are covered by section 50 of the Olympic Charter and include the rules preventing athletes from making political statements at the Olympic Games. The rules themselves are brief,27 and (sticking with the theme in the FIFA and UEFA rules) with little or no assistance from the IOC as to what constitutes ‘political, religious or racial propaganda’, it appears that the prudent interpretation would be to construe these words with their ordinary meaning, which certainly introduces a subjective element.
The Olympics and politics have an unusual relationship, and perhaps even more so than for FIFA and UEFA with football. The nature of the bid process and the choosing of a host nation to stage a Games, coupled with the appeal of the Olympic Movement from a non-sporting and sporting standpoint and the huge investment required to host a games, means that the governing regimes of host nations (and bidders) automatically feature prominently in the make-up of the Games themselves. There have been countless examples in recent memory of Olympic host nations whose actions or policies have caused tensions amongst the international community (see here for an article from 2008, providing a reminder of the challenges posed by the Chinese regime in and around the Beijing Olympics28), and one need only look as recently as the Sochi Winter Olympics to find an example of the challenge that can pose for athletes.
One of the core controversies surrounding the Sochi Games (and you may recall there were a few) was the introduction in 2013 of the Russian law against homosexual propaganda (see here for a summary as reported by the BBC29) and the apparent effect of this on LGBT rights in Russia. A number of regimes around the world publicly denounced the introduction of these laws, and this spilled over into many countries’ approach to the Sochi Games,30 with these positions taken at a macro level placing athletes in a difficult position. For example, in response to the ‘anti-gay’ propaganda debate in advance of the Sochi Games, IOC President Thomas Bach reminded athletes on the eve of the Games that:
“It is very clear the Games cannot be used as a stage for political demonstrations however good the cause may be … the IOC will take, if necessary, individual decisions based on individual cases.”
He then went on to state:
“It is also clear on the other hand the athletes enjoy freedom of speech so if in a press conference they wanted to make a political statement they are absolutely free to do so.”31
This inconsistency painted a confusing picture, and seemingly became a matter for athletes and NOCs to decode for themselves.32
This position continues as we move towards Rio, however (in common with both FIFA and UEFA) it would appear that a challenge for the IOC is to reconcile its rules on political statements with the overriding objectives of the Olympic Movement more generally. It remains the case that the vast majority of political statements made by athletes at the Olympic Games focus on alleviating perceived discrimination of some form or other (indeed, arguably the most famous of all Olympic athlete political demonstrations was on this very topic33), and it is here that the Olympic Charter requires careful interpretation.
The Fundamental Principles of Olympism (which the Olympic Charter codifies) declare (at Principle 6) that:
“the enjoyment of the rights and freedoms set forth in the Olympic Charter shall be secured without discrimination of any kind, such as race, color, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status”
This is wording that was amended post-Sochi.34 This suggests that the IOC is prepared to take a stance on discrimination, even if this is exactly the type of ‘political’ stance that it was seeking to prevent athletes from taking at Sochi.
The message appears to be that it is ok for the IOC to take action (whatever form that might take) but the IOC continues to want the ability to prevent athletes from doing so themselves. In addition, the IOC appears to retain the ability to take its own action against discrimination.35 Again, this wording is very widely drafted, and appears to allow the IOC to determine what discrimination looks like for the purposes of principle 6 and act upon it as it sees fit. This may well be fine, provided of course that the IOC is prepared to take the necessary action to back up its words, or indeed understands what that action should look like and is able to adequately enforce any steps taken. The weight of heavy investment into hosting an Olympic Games suggests that there are several billion reasons why this might become a challenge in practice.
The nature of both sport and politics means that governing bodies are, and will continue to be, placed in a difficult position – on the one hand, maintaining the independence (and ‘purity’) of sport, and on the other, ensuring the viability of major events through investment and, with it, potential exposure to related political causes. This is particularly so when one considers that most governing bodies have, as part of their mission statements, commitments to ethical behaviour and integrity (whether the reality is the same or not), and it may be hard to see how the same governing body can sanction an athlete under its control for making a statement against commonly perceived unethical behaviour when the statement itself would appear to fit with the overriding values of the governing body.36
The rules set by each of FIFA, UEFA and the IOC are designed to remove this debate, even if this is achieved through a ‘belt and braces’ approach through which the governing body has an element of choice over how best to apply its own regulations. The challenge, of course, arises in how these rules are interpreted and applied, and this is where the interest lies from a legal perspective, as often the key decision in each case (what actually is a ‘political’ statement) is a subjective question to be determined by the relevant governing body. Of course, routes of appeal exist for the relevant athletes (the subject of a separate article), but in some instances attempting to establish the intent behind a particular statement will either be inconclusive or may become vulnerable to mis-interpretation.37
As Thomas Bach’s pre-Sochi comments also note, there is an interplay on this issue with generally accepted principles of free speech. The line is a tough one to tread, and to date governing bodies appear to have suspended or attempted to suspend this mantra for statements made during competition. The legality of this is a question for another time, however GB Fencer Laurence Halsted’s recent article in The Guardian38 suggests that athlete empowerment and interest in their own unique political position will continue to rise with time, and freedom of speech may simply win the day, especially for causes based around anti-discrimination or inequality.
However, it would be remiss not to finish this piece by observing that the vast majority of political statements made by athletes at major sporting events are rather obvious in themselves and are usually made in full expectation that to do so is contrary to the rules of the event (or at the very least, might cause an issue somewhere). Without putting words into athlete’s mouths, it would appear that the ‘political’ statements referred to in this article were all intended to be as conspicuous as possible on a large stage, achieving maximum impact in the process. Whatever the rules and the consequences, and however consistently or inconsistently they might be applied, one thing that is clear is that the natural platform offered by the biggest sporting events means that we are unlikely to see the end of this type of activity any time soon. 2016’s sporting summer promises to be an interesting one!
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- Tags: Athlete Welfare | Brazil | Disciplinary | EUFA Disciplinary Regulations | Euro 2016 | Europe | FIFA | FIFA Code of Conduct | FIFA Code of Ethics | FIFA Disciplinary Code | FIFA Laws of the Game | Football | Governance | IOC | Olympic | Olympic Charter | Olympic Games Rio de Janeiro 2016 | Paralympic | Regulation | Russia | Sochi 2014 | UEFA | UEFA Statutes
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About the Author
Charlie is a senior associate at Stevens & Bolton LLP and specialises in the sports, media and entertainment sectors. Charlie advises on a wide range of sporting issues and has particular experience in the motor racing and football industries.