The 40 recommendations of the Olympic Agenda 2020 are out! First thought: one should not underplay the 40 recommendations, they constitute (on paper at least) a potential leap forward for the IOC. The media will focus on the hot stuff: the Olympic channel, the pluri-localisation of the Games, or their dynamic format. More importantly, and to some extent surprisingly to us, however, the IOC has also fully embraced sustainability and good governance. Nonetheless, the long-term legacy of the Olympic Agenda 2020 will hinge on the IOC’s determination to be true to these fundamental commitments. Indeed, the devil is always in the implementation, and the laudable intents of some recommendations will depend on future political choices by Olympic bureaucrats. 

For those interested in human rights and democracy at (and around) the Olympics, two aspects are crucial: the IOC’s confession that the autonomy of sport is intimately linked to the quality of its governance standards and the central role the concept of sustainability is to play in the bidding process and the host city contract.  

Good Governance = Autonomy

“Good governance and autonomy are strongly linked; they are two sides of the same coin”

This statement is to be found in the only document that really matters to understand the depth of the reforms envisaged: The context and background report. It is a confession; there is no autonomy of sport, unless this autonomy is in the hands of irreproachable institutions. The IOC is prone to consider itself as abiding to such standard, but it is not for itself to judge. The global public will be the sole arbiter of this pledge to good governance, as the IOC recognises: “Autonomy has to be earned”. 

In this regard, the IOC’s Agenda 2020 proposes a certain number of institutional and “good governance” reforms:

Recommendation 27 Comply with basic principles of good governance

The Agenda 2020 foresees that “all organisations belonging to the Olympic Movement [are] to accept and comply with the Basic universal Principles of Good Governance of the Olympic and Sports movements”. To this end, the organisations will be monitored and mentored and self-evaluation tests (probably similar to WADA’s compliance test) will be introduced. Furthermore, the IOC will update the principles of good governance with the help of a working group composed of “experts”. Obviously, the impact of this recommendation depends very much on the stringency of the monitoring and of the nature of the good governance requirements imposed. 

Recommendation 29: Increase Transparency

The IOC vows to publish financial statements according to the International Financial Reporting Standards and to produce an annual activity and financial report, including the allowance policy for IOC members. This is an important step, since it enables external observers to better scrutinise the financial flows in the Olympic movement and to have a full picture of the allowances received by each individual member of the IOC. It will be easier to follow where the IOC’s money is going and it will make money laundering harder. However, external revenues received by IOC members will stay undeclared, leaving the door open for suspicions.  

Recommendation 30: Strengthen the IOC Ethics Commission independence

This recommendation aims at securing the IOC’s ethics commission independence by proposing to elect its chair and its members via a secret ballot of the Session (the IOC’s parliament, assembling all IOC members). This seems quite an obvious thing in a democratic society, but for an institution versed in nepotism, it is a big step. Once implemented, the nomination process of the members of the Commission will be more difficult to control, and, thus, reinforce the independence of the sole potential counter-power (to the executive board) inside the IOC’s institutional structure. Again, this is no cure-all, and the Ethics Commission has yet to prove itself as an effective control mechanism, but it is a first step towards a more balanced institutional game.

 
Recommendation 32: Strengthen ethics

Here it is suggested to revise the Code of ethics, so that it “be fully aligned with the Olympic Agenda 2020’s drive for more transparency, good governance and accountability”. This is a vague, but potentially important, commitment to rethink the IOC’s Code of Ethics. Only time will tell if this revision will lead to better and accountable governance. In any event, only heightened public scrutiny can force the IOC to adopt governance standard ensuring full transparency and accountability. 

Recommendation 37: Address IOC membership age limit

The IOC is recommending a complex system to allow members over 70 to go beyond the official age limit entrenched in Article 16 of the Olympic Charter. In practice, the Session will be able to vote on allowing each member the right to stay on for maximum four years more than the age limit. This is a (minimal) concession to the IOC members strongly opposed to the age limit.  

Recommendation 38: Implement a targeted recruitment process

Recommendation 38 concerns the selection process of new IOC members. The IOC is no democratic institution. The “citizens” of the Olympic family do not elect their representatives. In fact, the IOC members are not necessarily part of the “Olympic family”. Historically, its selection process has been marred by nepotism (e.g. the Samaranch dynasty) as it is based on co-optation. The Agenda 2020 does not do away with this fundamentally oligarchic procedure, but it is slightly correcting it by empowering (and constraining) the nominations Commission, which is in charge of proposing candidates. The choice of the Commission is to be constrained by specific selection criteria, the most prominent being: gender balance; geographical balance; and the existence of an athletes’ commission within the organisation for representatives of Ifs/NOCs. As from now on, the press and the public will be able to blame the IOC if it does not follow its self-imposed requirements (gender balance being the one to watch closely) in the future. 

Some changes are also on the books concerning the Scope and Composition of IOC Commissions (Recommendation 40). Unfortunately, they are of unclear nature and magnitude.

These institutional innovations, if implemented, are positive steps forward to constrain power inside the IOC and to open it to outside scrutiny. The most remarkable outcome of the Olympic Agenda 2020 remains the crystal clear acknowledgment by IOC that the autonomy of sport is necessarily tied to the quality of the governing processes in place. This essentially means that the Agenda 2020 can only be the beginning of a dynamic institutional reform process that must lead the IOC to be more inclusive of the many constituencies of the sporting world. This is not enough, however; the IOC must also be receptive to the needs of society as a whole.  

Sustainability and Human rights in the bidding process

The bidding process should be at the centre of all critical attention. It is clear that it is the bidding process that entrusts the IOC with real political leverage. At this point, it takes fundamental decisions that will impact the life of millions (if not billions) of citizens Therefore, the brunt of the substantial (in contrast with the institutional measures discussed above) reforms was expected to impact on the bidding procedure (see the joint paper by the Swiss, German, Austrian and Swedish NOCs). It is also on the bidding process that the IOC received the most contributions in the framework of the Agenda 2020 (more than 90). In this regard, Sochi was a wake-up call, due to the abuses recorded on the human rights and anti-discrimination front, and the environmental sustainability side. The IOC Agenda 2020 is not shy of tackling these issues and, with caveats discussed below, should be praised for doing so. First, and this is a fundamental point, the Host City Contract will from now on be made publicly available (for now we only have leaked draft documents as for the 2022 contract). This is a necessary move for an institution claiming to follow good governance principles. Indeed, it will ease the work of critics and commentators scrutinising the contract and the public as a whole will have access to the official document itself.  

Recommendation 1: Shape the bidding process as an invitation

This first recommendation contains a variety of proposals. The spirit of which is “to invite potential candidate cities to present an Olympic project that best matches their sports, economic, social and environmental long-term planning needs”. Thus, for “reasons of sustainability”, the IOC will tolerate that events do not take place in the Host-city but in another nearby city or country (modification of article 34 of the Olympic Charter). The Host City Contract will include a provision banning discriminations, as was previously announced and celebrated by Human Rights Watch. In addition to this, article 21 of the 2022 Host City Contract will impose sustainability requirements on the Host city. Yet, the transformative quality of these provisions is still to be demonstrated. The main point remains that new regulations for the bidding procedure will be drafted. These will be key to set in stone the sustainability and Human rights turn of the Olympic family and will be the place to look at in order to assess whether the IOC is really serious about the changes put forward in the Olympic Agenda 2020.

Recommendation 2: Evaluate bid cities by assessing key opportunities and risks

The evaluation of the bids is key to the IOC’s impact on sustainability or human rights aspects (and not only to ensure that its commercial interests are safeguarded). Hence, it is good news that the IOC is to consider as positive aspects of a bid: “the maximum use of existing facilities and the use of temporary and demountable venues where no long-term venue legacy need exists or can be justified”. Furthermore, the Evaluation Commission is “to benefit from third-party, independent advice in such areas as social, economic and political conditions, with a special focus on sustainability and legacy”. In fact, the final reports by the Evaluation Commission are to include “an assessment of the opportunities and risks of each candidature, as well as of sustainability and legacy” (modification of bye-law to rule 33) and third-party independent risk-assessments are to be conducted. This will be a powerful tool in the hands of NGOs to decisively influence the selection process by providing in depth (and public) assessments of the sustainability of the different bids. It will also, and perhaps mainly, offer critical ammunitions in case the IOC is inclined to disregard the sustainability assessment provided by the Evaluation Commission. There is no rock solid guarantee that the IOC will in the end take into account the sustainability of a bid to allocate the Games. Yet, a full-blown neglect of this assessment would give way to damaging public criticism.  

Recommendation 4: Include sustainability in all aspects of the Olympic Games

This recommendation is aimed at ensuring that sustainability “is included in all aspects of the planning and staging of the Olympic Games”. Sustainability is to be achieved via “a sustainability strategy to enable potential and actual Olympic Games organisers to integrate and implement sustainability measures”. The IOC wants to assist the Organising Committees “to establish the best possible governance for the integration of sustainability throughout the organisation”. To this end, the “[n]ext Host City Contract [is] to reflect, through a number of additional obligations” these policy goals. Moreover, the IOC considers signing a “MoU with the United Nations Environment Programme (UNEP) for possible independent assessment of OCOG sustainability performances”. Again, depending on the extent to which the Host City Contract will be modified, these changes are substantial. However, the UNEP might need concrete commitments to be convinced to deepen its existing collaboration with the IOC, especially after the disaster of the Sochi Games. The Host City Contract is certainly an important lever to impose obligations on the Host City, but to effectively do so it needs to be accompanied by clear and potent procedures ensuring its enforcement.  

Recommendation 5: Include sustainability within the Olympic Movement’s daily operations

The IOC’s administration in its day-to-day operations is to follow sustainability standards. Most notably, it aims to “introduce sustainable sourcing policies in tendering processes, sponsorship, licensing and supplier agreements for renewals or new contracts”. This is an instance of IOC greening its own administrative operations to improve its image. 

Recommendation 14: Strengthen the 6^th Fundamental Principle of Olympism

In a symbolic gesture, the 6^th fundamental principle of Olympism, which forbids all types of discrimination, is to be re-written into a hybrid text of Article 14 of the European Convention of Human Rights and Article 2 of the UN Universal Declaration of Human Rights.  This is a tricky move and guessing the way the new principle will be interpreted in the future is an impossible deed. On one side, it seems that the principle is now completely in line with anti-discrimination standards widely recognised under international law. On the other, one has the impression that the new wording narrows its scope of application. Indeed, discrimination is not “incompatible with belonging to the Olympic Movement” anymore, it is merely inadmissible when exercising the rights and freedom granted by the Olympic charter. In general, this is a symbolic provision, the wording of the Host City Contract or the bidding requirements have way more practical relevance, but this development is not necessarily a sign of a more stringent action from the part of the IOC against discriminations. 

Conclusion: The Devil is in the implementation/interpretation

This leads us to a final, and crucial, caveat. Law is very much about the interpretation of the meaning of words. In our case, the IOC will be the main responsible to give a practical meaning to the sweet words enshrined in the Agenda 2020’s recommendations. Starting with the IOC Session on the 8 and 9 December in Monaco, which will decide on the modifications to the Olympic Charter or its byelaws. The legal meaning of transnational concepts such as sustainability, good governance and discrimination is more or less shared around the globe. The IOC cannot afford to betray it; there is no space for the use of newspeak, or for any other word games leading to a practical disregard of the essential gist of those concepts. The IOC and its president have raised high expectations with this set of recommendations indicating a willingness to change from the side of the Olympic movement. Such expectations cannot be disappointed over and over again; it would certainly be suicidal for the Olympic movement to betray its grand promises. Now comes the time to deliver!

The last years has seen the European Commission being put under increasing pressure to enforce EU State aid law in sport. For example, numerous Parliamentary questions have been asked by Members of the European Parliament[1] regarding alleged State aid to sporting clubs.  In reply to this pressure, on 21 March 2012, the European Commission, together with UEFA, issued a statement. In this statement, the Commission held that the objectives of the UEFA’s Financial Fair Play (FFP) Regulations are consistent with the aims and objectives of European Union policy in the field of State aid. Moreover, the Commission highlighted that it is willing to cooperate with UEFA when enforcing the rules on EU State aid onto professional football. According to the Commission, when football clubs experience financial difficulties, there is a particular risk that public authorities may be tempted to grant State aid. Thus, enforcing EU rules on State aid will ensure prudent economic management by football clubs that will serve to protect both the interests of individual clubs and players as well as the football sector in Europe as a whole.

Now that UEFA is in the process of enforcing its FFP regulations on football clubs, the question remains whether the European Commission has kept its word about its part of “the deal”. In other words, is there a visible change regarding the enforcement of the EU State aid rules by the European Commission?

Article 107 of the treaty on the Functioning of the European Union (TFEU) foresees that a Member State may not aid or subsidize private parties in distortion of free competition. The State aid rules constitute one of the four policy areas forming EU competition law. The others being the rules on cartels, abuse of dominance and mergers. The European Court of Justice established long ago that EU competition Law was also applicable to sporting entities[2], but very little has ever been done or said about State aid in sport. In fact, one could easily get the impression that the Commission deliberately avoided to get its hands dirty with such problems. One famous example concerns a terrain qualification change in Madrid in the late 90’s that proved hugely advantageous for Spanish football club Real Madrid[3]. In this case, the Commission, even though agreeing that an advantage was conferred to the club, simply stated that the new qualification of the terrain in question does not appear to involve any transfer of resources by the State and could therefore not be regarded as State aid within the meaning of article 107 TFEU.

So has anything changed since then, or more specifically, since 21 March 2012? The Commission has never been famous for its celerity, meaning that it could take another few years before true change can be witnessed. The continuous delays in coming to decisions has also been one of the main points of criticism by the European Ombudsman on the way the Commission is dealing with State aid in sport. However, on a close look, one can distinguish the beginning of a shift towards active enforcement of EU State aid law in sports.

On the day of the joint statement, the Commission published a decision indicating that it would initiate a formal investigation into alleged State aid granted by Sweden for the construction of a sporting arena for ice hockey and other indoor sports in the town of Uppsala. The Swedish State notified the Commission that it had planned to grant EUR 16.5 million directly plus EUR 1.7 million for 25 years for the construction because the arena would fulfil an objective of common interest. Moreover, due to its multifunctional character, the arena would also be used for other sports and events, such as concerts. Nonetheless, the Commission had doubts as regards the necessity to use public funding for this projects and the reasons advanced by Sweden to justify the need of a completely new arena instead of renovating an old one.

The Commission’s scrutiny of State aid in the field of sport did not end there. Since March 2012 the Commission has dealt with 12 cases in which it had to decide whether to launch an official investigation or not. The cases included possible State aid to over 30 beneficiaries in six different Member States, the latest one published 9 April of this year (see table). The aid measures varied from grants for renovating old stadiums or constructing new ones, debt waivers and reduced tax-rates for certain clubs, to acquisition of a stadium by the municipality, guarantees on bank loans by the club and suspected advantageous property transfers between a club and the municipality. In five out of the 12 cases, the Commission has decided to launch an official investigation in accordance with article 108(2) TFEU.

TableStateAidInSport.pdf (95.1KB)

Launching an official investigation does not mean that the Member State in question will get sanctioned for granting unauthorized State aid. Article 108(2) TFEU allows the Member States and concerned parties, such as the beneficiaries, to submit comments and to respond to any doubts the Commission might have regarding the legality of the aid. Indeed, on 2 May 2013, in its final decision regarding the construction of a sporting arena in the town of Uppsala, the Commission concluded that the granted aid is compatible with the internal market in accordance with article 107(3)(c) TFEU[4] and is therefore authorized. Nonetheless, four cases, which will be analyzed in future blog posts, are still pending a final decision by the Commission. For now, it is fair to say that the Commission has shifted towards an active enforcement of EU State aid law in sports. However, whether the Commission is prepared to “show its teeth” and sanction the Member States who granted unlawful aid to sporting clubs remains unclear.

[1] See for example: E-005417/2011, E-004360/2011 and P-4699/09

[2] Case 36/74 Walrave and Koch, (1974)

[3] The qualification change allowed Real Madrid to sell its old training grounds. Though the exact price for the grounds remains unknown, Real Madrid was suddenly capable of buying players like Figo and Zidane for record fees.

[4] Article 107(3)(c) TFEU: “The following shall be compatible with the internal market: aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest”.

Since the landing on the sporting earth of the Übermensch, aka Usain Bolt, Jamaica has been at the centre of doping-related suspicions. Recently, it has been fueling those suspicions with its home-made scandal around the Jamaica Anti-Doping Commission (JADCO). The former executive of JADCO, Renee Anne Shirley, heavily criticized its functioning in August 2013, and Jamaica has been since then in the eye of the doping cyclone.

In light of the reluctance of Jamaica to remedy the failures of JADCO, the World Ani-Doping Agency (WADA) ordered a formal review of the anti-doping practices on the Island. In case of a negative report, WADA would have declared Jamaica non-compliant, this would in turn trigger sanctions by Sport Governing Bodies, in extreme cases even a full ban from major international events (Olympic Games or World Cups). In order to avoid such a dire fate the sporting Minister of Jamaica and the head of WADA met on November 2013 and a reform plan for the Jamaican anti-doping organisations was agreed. The minister accepted to undertake a legislative review of anti-doping law in Jamaica and to evaluate JADCO’s governance and management structure. Furthermore, the Jamaican government allocated new funds to the fight against doping. In short, JADCO is being restructured, this is very much a work in progress, but WADA is strongly backing the reforms so far.

Furthermore, in 2013, Jamaican track and field athletes have been hit by a strange string of positive doping cases: Asafa Powell, Sherone Simpson, Veronique Campbell-Brown, Allison Randall,  Damar Robinson, and (in 2012) Dominique Blake. All those cases lead to sporting bans of various lengths by Jamaica Athletics Administrative Association’s  (JAAA) Disciplinary Panel. However, even the Jamaican doping justice is scrambling, the probity of some judges have been doubted and calls to reverse the bans in the cases of Asafa Powell and Sherone Simpson have been heard. Anyhow, the cases will probably end up in front of CAS.

Before CAS, the weaknesses of the Jamaican anti-doping system became overt in the Campbell-Brown case. Indeed, in that case, the JADCO acknowledged that it had been, as a matter of policy choice, constantly ignoring the WADA International Standards for Testing. Thus, CAS was prompt to assert that “systematic and knowing failure, for which no reasonable explanation has been advanced, is deplorable and gives rise to the most serious concerns about the overall integrity of the JAAA’s anti-doping processes, as exemplified in this case by the flaws in JADCO’s sample collection and its documentation” (§182). Consequently, the ban on Veronique Campbell-Brown was lifted. Additionally, in a recent decision (2 May 2014) in the Dominique Blake case, CAS reduced the 6-year ban to 4,5 years because, among other reasons, “she was provided with barely any anti-doping education” and “she has only had one previous experience with doping control (when she was 19 years-old)”.

What kind of lessons does the fiasco of the anti-doping system in Jamaica holds for the whole World Anti-Doping edifice? Well, first, that the local level matters a lot. Indeed, if local authorities are inefficient and/or unwilling to address the various dimensions (education, compliance, enforcement) of the anti-doping fight, the WADA and its rules lose relevance. This might engender loopholes in the global anti-doping regime, thus creating discrepancies between athletes. Indeed, some might be very strictly monitored due to their residence being in a complying country, while others will systematically escape any control or punishment due to insufficient procedural standards. Hence, for the WADA Regime to be successful in reining in doping and ensuring a level playing field for athletes, WADA must urgently warrant that enforcement asymmetries are avoided.