Sport’s human rights requirements: an opportunity and challenge for sports lawyers as well as sports governing bodies
The World Players Association (World Players) was pleased to see LawInSport publish US attorney Matthew Kaiser’s article entitled "A guide to the World Players Association’s Universal Declaration of Player Rights" on 16 February 2018. Matthew’s article provides a useful summary of the content of the Universal Declaration of Player Rights (Player Rights Declaration) and highlights some of the important commitments made by international Sport Governing Bodies (SGBs) in 2017 to embed the human rights of all people who are involved in the delivery of sport, including the players. Matthew’s article, however, does not fully appreciate how these commitments – and the forces behind them – represent a profound change to global sports law and the governance of SGBs. Moreover, SGBs have existing responsibilities under internationally recognised human rights standards and principles to respect and fulfil the rights set out in the Player Rights Declaration.
The challenge for sports lawyers
There is now a great challenge and opportunity for sports lawyers who work at the global level to contribute to the development of lex sportiva1 in a positive way. This will require a deep appreciation and understanding of business and human rights law and practice. It will see the longstanding unilateral method of governance by SGBs give way to proactive multi-stakeholder engagement. SGBs are obliged to conduct their activities in accordance with the United Nations Guiding Principles on Business and Human Rights (UNGPs),i the standard which underpins their recent human rights commitments and which has guided the development of the Player Rights Declaration. As with any field of law and practice, the real challenge lies in its application. The seminal human rights report of Professor John Ruggie – the architect of the UNGPs – to FIFA of April 2016 is essential reading for all interested practitioners on the application of the UNGPs to sport and the governance of SGBs.ii
As a long serving player association leader and general counsel, I have always been reluctant to embrace the phrase, "sports law". I have much preferred the phrase "sport and the law". From the perspective of players collectively, it has been the application of employment, labour, competition and human rights law to the work of athletes that has enabled the organised players of the world to earn an "equal say" with management in the governance of their profession and sport. Even though the notion of an "equal say" is foreign to many at the highest levels of global sports governance, the track record of collective bargaining is a proud one when measured by the popular growth and economic development of the sports which have been able to embrace it.iii
Even I must now acknowledge the pervasive notion of lex sportiva at the global level and how it – by being based primarily on the regulations of SGBs – has been able to develop through international arbitration. This does not mean that lex sportiva is a legitimate source of law, however. World Players strongly believes it can only ever be legitimate if it respects and upholds internationally recognised human rights. We are confident this reform is underway and will be realised. There is a more detailed analysis of this which, for reasons of time and format, is beyond the scope of the article. However, for those that would like to explore this further in December 2017, the Maryland Journal of International Law published my article on embedding the human rights of players as a prerequisite to the legitimacy of lex sportiva and sport’s justice system.iv
2017 – A Pivotal Year
2017 saw SGBs incorporate internationally recognised human rights into the hosting agreements of the Olympic Games,v the FIFA World Cup and the UEFA EUROs,vi the adoption of a binding human rights policy by FIFAvii and the Commonwealth Games Federation,viii and the joint announcement by 26 key organisations in the international sports and business and human rights communities including World Players to establish an independent Centre on Sport and Human Rights in 2018.ix These changes all point to an inexorable shift to ensure that sport stands true to its rhetoric and potential of being a humanitarian force for good. They have been made possible through multi-stakeholder engagement and collective action as well as a deep awareness that the humanx and athletexi rights abuse that continues to afflict sport threatens its very social licence.
The implementation of the UNGPs "protect, respect and remedy" framework would enable SGBs to proactively address the human rights concerns of players in their decision-making processes.xii
The Player Rights Declaration is grounded in: (1) the real-life experiences of athletes; and (2) internationally recognised human rights.xiii It requires change to both the content of global sports law, and the culture in which it is made and implemented. As I said upon the announcement of the Player Rights Declaration:
"The rule books of world sport impose thousands of pages of onerous obligations, but none clearly spell out the internationally recognised human rights of athletes. The result is an unjust system of sports law that lacks legitimacy and fails to protect the very people who sit at the heart of sport."xiv
The Player Rights Declaration groups the salient rights of athletes into four pillars:xv
access to sport, including non-discrimination, equal opportunity, the protection of the rights of the child and the right to access a well governed sporting environment which is free of corruption and cheating (articles 1 – 4);
labour rights, such as fair remuneration, health and safety, the right to work and the right to organise and collectively bargain (articles 5 – 9);
personal rights, including the right to education, privacy, data protection and freedom of political opinion and expression (articles 10 – 13); and
legal rights, especially the right to due process, the presumption of innocence when charged and to access an effective remedy (articles 14 – 16).xvi
Article 17 imposes an important and overarching duty on each player to "respect the rights of his or her fellow players under this Declaration, and to respect the fundamental human rights of everyone involved with or affected by sport".
How Sports Governing Should Implement Obligations
In July 2017, World Players published the World Player Rights Policy (Player Rights Policy), an important policy document that anticipated and now complements the Player Rights Declaration.xvii The Player Rights Policy provides clear guidance as to how a sport is to implement its obligations under the UNGPs in respect to players. This involves four key steps:
the development and adoption of a binding player rights policy that commits the sport to protecting, respecting and fulfilling the internationally recognised human rights of players;
undertaking an ongoing due diligence to identify risks to the rights of players;
ensuring that players whose rights are violated can access an effective remedy through an accessible, legitimate and rights compatible grievance mechanism; and
undertaking ongoing stakeholder engagement (including with player associations) and communication, including by transparently reporting on player rights related matters.xviii
The four key elements of the Player Rights Policy are provided for in FIFA’s Human Rights Policy May 2017 edition,xix which expressly applies to the players. Significantly for the future development of lex sportiva within the sport of football, paragraph 13 of the policy reads:
"Human rights commitments are binding on all FIFA bodies and officials when exercising their respective powers and competencies, including when interpreting and enforcing FIFA rules."xx
Matthew’s article describes the Player Rights Declaration as "only an aspirational guideline", and questions whether SGBs will "sign onto" and enforce the Player Rights Declaration. This suggests that SGBs will be reluctant to make "any concession (which) would take away some of their power over athletes". His article also describes the Court of Arbitration for Sport (CAS) as the "quintessential sports dispute resolution body" which "already provides all the aspirational rights mentioned in the (Player Rights) Declaration", although the "envisioned fair and expeditious judicial system would be a welcomed change for many athletes given the current problems many have experienced trying to protect their rights". Indeed, player concerns with the operation and effect of the CAS are profound.xxi
SGBs, many of which are global businesses of considerable scope, have an existing responsibility to respect the internationally recognised human rights of athletes. The corporate responsibility to respect human rights is, according to the UNGPs, "a global standard of expected conduct for all business enterprises wherever they operate" and one which "exists independently of States’ abilities and / or willingness to fulfil their own human rights obligations, and does not diminish those obligations."xxii Further, "it exists over and above compliance with national laws and regulations protecting human rights."xxiii
In order to meet their responsibility to respect human rights, SGBs must have in place "[p]rocesses to enable the remediation of any adverse human rights impacts they cause or to which they contribute."xxiv Where SGBs "have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes."xxv This requirement acknowledges that, even "with the best policies and practices, a business enterprise may cause or contribute to adverse human rights impacts that it has not foreseen or been able to prevent."xxvi SGBs including the IOC, FIFA and WADA, operate a sophisticated arbitration system through the CAS. Professor Ruggie noted in his report to the FIFA that players need "certain procedural and substantive protections" to ensure that such an arbitration system can deal effectively with human rights-related complaints.xxvii Specifically, Recommendation 6.2 of Professor Ruggie’s report reads:
"FIFA should review its existing dispute resolution system for football-related issues to ensure that it does not lead in practice to a lack of access to effective remedy for human rights harms.
FIFA should ensure that its own dispute resolution bodies have adequate human rights expertise and procedures to address human rights claims, and urge member associations, Confederations and the Court of Arbitration for Sport to do the same;
The review should involve independent experts as well as representatives of players and other users of the system."xxviii
Matthew’s article also recommends that the Declaration of Player Rights should include two further protections for athletes: (1) "informing athletes of their rights and (2) giving athletes access to an attorney or at least an advocate". Matthew is right to highlight these points, which are provided for in the document.
In fact, it is not enough for players to be educated about the terms that bind them, although this is essential. For lex sportiva to be a legitimate source of law, those bound must have a meaningful role in the making of the law. The Preamble to the Player Rights Declaration calls on every sport to work in partnership with its players to:
"ensure that the internationally recognised human rights of the player including as contained in this Universal Declaration of Player Rights are legally adopted within the constituent documents of their sport or pursuant to a collective bargaining agreement."
Further, articles 8(3) and (4) provide:
"3. A player has the right to negotiate the terms and conditions upon which he or she is involved in sport and to be represented by persons and organisations of his or her choosing in those negotiations.
4. A player must only be bound by terms and conditions which are legitimately made and administered through collective bargaining or to which he or she has freely and genuinely consented."
A player’s legal rights are embedded within the fourth pillar of the Player Rights Declaration, which include the rights to the protection of the law, equality before it, due process and the right to access an effective remedy when the rights provided for in the document are not respected or fulfilled. These rights certainly include the right to legal counsel.
The development of the Player Rights Declaration highlights the opportunity and challenge that exists for all SGBs to meet their responsibilities as business enterprises under the UNGPs and legitimize lex sportiva by embedding the fundamental human rights of the players. This will not only involve reforming the content of global sports law, but the culture with which it is made. Unilateralism must give way to collective action, and the defensive focus on the "specific nature" of sport replaced by trust and expertise including a proactive commitment to the fundamental human rights of athletes. The development also presents an opportunity and challenge for sports lawyers, which World Players trusts will be embraced. That is to contribute to the legitimization of lex sportiva by embracing the long overdue application of business and human rights law to the world of sport.
World Players Association, UNI Global Union
Wednesday 14 March 2018
- Employment Law Fédération Internationale de Football Association (FIFA) FIFA Governance Human Rights International Olympic Committee Regulation UEFA Union of European Football Associations (UEFA)