Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

It has been more than seven years since the FIFA Executive Committee awarded the 2022 World Cup to Qatar. And yet only in November 2017 did the Qatari government finally agree to dismantle the controversial kafala system, described by many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant workers have reportedly been exposed to a wide range of abusive practices such as false promises about the pay, passport confiscation, or appalling working and living conditions.[1] On top of that, some workers have paid the highest price – their life. To a certain extent, all this could have been avoided if human rights had been taken into account when evaluating the Qatari bid to host the tournament. In such a case, Qatar would not have won the bidding contest without providing a convincing explanation of how it intends to ensure that the country's poor human rights record will not affect individuals, including migrant workers, contributing to the delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an integral part of the bid.

Urged by Professor John Ruggie and his authoritative recommendations,[2] in October 2017 FIFA decided to include human rights within the criteria for evaluating bids to host the 2026 World Cup, following similar steps taken earlier this year by the International Olympic Committee (IOC) and UEFA in the context of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part blog critically examines the role human rights play in the new bidding regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on the IOC and UEFA. The second part then takes a closer look at FIFA and aims to use a comparative analysis to determine whether the new bidding regulations are robust enough to ensure that selected candidates abide by international human rights standards.

IOC: Olympic Winter Games 2026

About the host selection process

Compared to the past, cities bidding to host the 2026 Games could expect lower costs, simplified procedures, and more assistance provided by the IOC.[3] All interested cities[4] might enter a Dialogue Stage[5] and engage with the IOC to learn more about the benefits and responsibilities associated with the hosting and staging of the Games. Although the Dialogue Stage is non-committal, cities that join are supposed to present their consolidated Games concepts,[6] outlining their vision, long-term plan alignment, or initial financial strategy, as well as providing information with regard to a potential referendum.[7] These consolidated concepts, together with the IOC's own research, will serve as a basis for a preliminary report exploring the capacity of interested cities to deliver successful Games.[8] The IOC Executive Board will review this report and recommend to the IOC Session which cities should be invited to the Candidature Stage.[9] The IOC Session will designate Candidate Cities in October 2018 during its meeting in Buenos Aires.[10]

Candidate Cities will then have until 11 January 2019 to prepare and submit their Candidature Files together with an initial set of core guarantees.[11] In their Candidature Files, Candidate Cities shall provide answers to a variety of questions as set out in the Candidature Questionnaire, covering areas such as sustainability and legacy, transport, accommodation, safety and security, finance, or marketing. Thereafter, Candidate Cities will be visited by the IOC Evaluation Commission that is tasked with conducting an in-depth assessment of each bid and producing a report to help the IOC Session elect the most suitable candidate. The Host City of the 2026 Games will be elected in September 2019.[12]

Human rights as selection criteria

Little attention is paid to human rights in the Candidature Questionnaire. Candidate Cities are only required to provide a guarantee whereby the national government and relevant local authorities undertake to respect and protect human rights and ensure that any violation of human rights is remedied ''in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognised human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country''.[13] This language is somewhat ambiguous because when defining human rights that should be respected and protected in connection with the hosting and staging of the Games, the guarantee first refers to human rights applicable in the Host Country and only then to the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles).[14] The latter make clear that the responsibility of business enterprises to respect human rights extends to specific international treaties and other instruments.[15] However, some of these treaties could be inapplicable in the Host Country if not ratified. This would make the guarantee to some extent self-contradictory. Apart from the guarantee, the IOC does not ask for any other human rights-related information from Candidate Cities. In the absence of such information, it is difficult to see how the Evaluation Commission[16] will assess the Candidate Cities' capacity to respect and protect human rights.

UEFA: Euro 2024

About the host selection process

While the Euro 2020 will be a bit of an experiment with games scheduled to take place in 12 different cities across the continent, the Euro 2024 returns to its classic format as only one member association will host the tournament. In March 2017, UEFA confirmed that it would be either Germany or Turkey. The next step for both member associations is to submit their Bid Dossiers to UEFA by no later than 27 April 2018.[17] In principle, the bidders must demonstrate in their Bid Dossiers that they meet all Tournament Requirements. Importantly, UEFA reserves the right to appoint independent consultants when evaluating bids.[18] A written evaluation report on each bid will be circulated in September 2018 before the UEFA Executive Committee finally decides which member association will host the Euro 2024.[19]

Human rights as selection criteria

UEFA requires that the bidders and then the Host Association respect, protect, and fulfil human rights and fundamental freedoms, including the rights of workers and children, in line with international treaties and other instruments such as the Universal Declaration of Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, the Convention on the Elimination of All Forms of Discrimination against Women, or the Convention on the Rights of the Child.[20] In order to meet this obligation, the bidders should in particular seek to culturally embed human rights, proactively address human rights risks, engage with relevant stakeholders, and implement means of reporting and accountability.[21] The bidders' capacity to respect, protect, and fulfil human rights will be evaluated based on their human rights strategy that must be included in their Bid Dossiers.[22] As part of this strategy, the member associations bidding to host the Euro 2024 should explain how they are going to integrate the UN Guiding Principles in their activities related to the organisation of the tournament.[23] While no further details are given about the required content of this strategy, UEFA suggests that a successful bid should not fail to: (i) outline proposed measures aimed at preventing human rights abuses, in particular child labour in supply chains and violations of workers' rights; (ii) provide evidence of meaningful consultation with vulnerable groups; or (iii) describe grievance mechanisms that will be available for victims of human rights abuses.[24]

Conclusion

Unlike UEFA, the IOC has attracted widespread criticism for being involved with negative human rights impacts.[25] Nevertheless, it is the former who gives more weight to human rights in its new bidding regulations. This is even more surprising given that the IOC introduced its bidding regulations later than UEFA. It seems that the IOC deliberately avoids including human rights within the criteria for evaluating bids to host the Olympic Games, hoping that this would encourage more cities to participate in the host selection process. Further reflections on human rights as selection criteria in bidding regulations for mega-sporting events will be presented in the second part of this blog that will focus on FIFA and provide some comparative perspectives.

[1]    Amnesty International, The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2022 World Cup Site, 30 March 2016. See also Human Rights Watch, Qatar: Take Urgent Action to Protect Construction Workers, 27 September 2017.

[2]    John G. Ruggie, For the Game. For the World. FIFA and Human Rights, p. 32.

[3]    IOC, IOC Approves New Candidature Process for Olympic Winter Games 2026, 11 July 2017.

[4]    To the best of my knowledge, Calgary (Canada), Salt Lake City (United States), Sapporo (Japan), Sion (Switzerland), and Telemark (Norway) consider bidding.

[5]    The Dialogue Stage runs from September 2017 to October 2018. Interested cities can join until 31 March 2018. See IOC, Candidature Process for the Olympic Winter Games 2026, pp. 11-17.

[6]    Ibid.

[7]    On 15 October 2017, a referendum was held in the Austrian province of Tirol. A negative outcome prevented the city of Innsbruck from launching a bid to host the 2026 Games.

[8]    This report is to be drawn up by the Olympic Winter Games 2026 Working Group overseen by an IOC member and consisting of individuals representing the International Paralympic Committee, the IOC's Athletes Commission, International Winter Sports Federations, and National Olympic Committees. See Candidature Process for the Olympic Winter Games 2026, p. 16.

[9]    Ibid.

[10]   The capital of Argentina will host the 2018 Youth Olympic Games.

[11]   IOC, Candidature Process for the Olympic Winter Games 2026, p. 18.

[12]   Ibid. p. 22.

[13]   IOC, Candidature Questionnaire for the Olympic Winter Games 2026, pp. 86, 88.

[14]   Ibid.

[15]   These include, at a minimum, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work. See UN Guiding Principles, Principle 12.

[16]   The Evaluation Commission may be assisted by experts. See IOC, Olympic Charter, Bye-Law to Rule 33.

[17]   UEFA, Bid Regulations for the UEFA Euro 2024, Article 5.05.

[18]   Ibid. Article 14.

[19]   Ibid. Articles 6.02 and 6.04.

[20]   UEFA, Tournament Requirements for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 5.

[21]   Ibid. pp. 5-6.

[22]   UEFA, Bid Dossier Template for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 5.

[23]   Ibid.

[24]   UEFA, Tournament Requirements for the UEFA Euro 2024, Sector 03 – Political, Social and Environmental Aspects, p. 6.

[25]   Jonathan Watts, Rio Olympics linked to widespread human rights violations, report reveals, 8 December 2015. See also Human Rights Watch, Race to the Bottom: Exploitation of Migrant Workers Ahead of Russia's 2014 Winter Olympic Games in Sochi, 6 February 2013. See also Human Rights Watch, 'One Year of My Blood': Exploitation of Migrant Construction Workers in Beijing, 11 March 2008. 

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception?

Starting with the basics: the Human Growth Hormone (hGH) Test and the scientific controversies

The hGH is a hormone synthesized and secreted by cells in the anterior pituitary gland located at the base of the brain.[2] It is an endogenous substance, i.e. naturally produced in humans such as testosterone, and is necessary for skeletal growth, recovering cell and tissue damage. When released by the liver, hGH bonds to receptors in targeted cells to stimulate an increase in the levels of insulin growth factors, which stimulate growth and development of the cells.[3] It is noteworthy that the level of total hGH concentration varies in a human’s blood naturally and substantially over the course of the day.[4] High concentrations of hGH are considered abnormal and associated with anabolic substances.

Although there is no scientific consensus on whether higher levels of hGH actually enhance performance[5], anti-doping authorities have long been trying to detect and prevent the use of rhGH. The first blood test for hGH was introduced only at the 2004 Olympic Games in Athens. The major challenge in developing a doping test for hGH has been the uncertainty and variability in data used to establish the so called decision limits, namely a cut-point to assess whether an athlete’s blood higher hGH levels are natural or a result of doping. In 2010, the World Anti-Doping Agency (WADA) published its guidelines for the hGH test, including the test’s decision limits.[6] The testing is done through the use of two distinct sets of reactive tubes coated with two combinations of antibodies, which are referred to as Kit1 and Kit2.[7] The ratio of concentration of rhGH versus other natural derived isoforms of hGH are measured with the Kits which are developed to detect the administration of exogenous hGH. Under the 2010 Guidelines, the decision limit values as regards to male athletes are 1.81 for Kit 1 and 1.68 for Kit 2. Any value above these limits triggers the report by the laboratory of a positive test.

Nevertheless, since its introduction, the WADA hGH test has raised multiple concerns in the scientific community with regard to the lack of reliable and valid scientific knowledge about factors other than doping that might affect the relationships upon which the test relies.[8] The varying levels of all types of hGH make it difficult to establish an accurate baseline measurement for natural hGH values and rations. For instance, hGH can be affected by factors such as gender, age, exercise, body consumption, time of day and stress. Also psychological or pathological factors may affect the ratio. In view of the lack of significant knowledge with regard to the factors that may result in suspicious hGH values, it is highly possible that athletes are mistakenly labelled as ‘cheaters’.

Although the decision limits of hGH tests are still being debated, in the last few years, the CAS has been called to strike the right balance between the need for fairness in sport and the risk of devastating an athlete’s life, career and reputation on the basis of unsound scientific assessments. Crucially, it will be demonstrated that the CAS panels adopted a rather erratic approach when interpreting the hGH decision limits, adding legal uncertainty to the current scientific uncertainty.

The Veerpalu ‘no doping sanction in absence of scientific validity’ threshold

On 14 February 2011, Andrus Veerpalu, the Estonian Olympic Gold Medalist in cross-country skiing, was tested positive for hGH. On 12 September 2011, he appealed the three-year doping ban for use of hGH imposed by the International Ski Federation (FIS) and he became the first to challenge the validity of hGH tests before the CAS. With its decision on 25 March 2013, the CAS stunned the anti-doping world: it overturned Veerpalu’s drug suspension on the grounds that the decision limits of the hGH test could not be reliably verified.

But, how did the CAS reach this striking ruling? First and foremost, the CAS did not question the hGH test itself, nor the scientific validity of the analytical method used to detect rhGH. The Court’s criticism rather focused on the lack of sufficient scientific validity in defining the decision limits set by WADA beyond which laboratories should report the presence of rhGH.[9] Namely, the Court questioned the use of statistics in interpreting the hGH test results and detected three procedural flaws: (1) inconsistencies in the studies conducted, (2) the lack of peer review on WADA hGH studies and (3) the insufficient evidence submitted during the proceedings.[10] In particular, as the studies on hGH are concerned, the panel concluded that the population study that had been conducted to establish the decision limits of the hGH test was inadequate.[11] In view of the procedural flaws detected in the statistical analysis conducted by WADA to establish the hGH baseline, the panel did not consider itself comfortably satisfied as to the reliability of the decision limits for the hGH test, and acquitted Veerpalu.[12]

To reverse a doping case and openly question WADA’s hGH test decision limits was an unprecedented move in light of the CAS’ usual hands-off approach when dealing with WADA policies. The Veerpalu award was not only a huge blow to WADA hGH tests, but it also triggered significant rethinking of the standards applicable in the anti-doping fight. As an immediate consequence of the award, all reporting of adverse analytical findings for rhGH were frozen pending the completion of new studies on the determination of hGH test decision limits based on a bigger population-based study. Secondly, a new rebuttable presumption of the scientific validity of the analytical methods and decision limits for rhGH was introduced in the revised WADC 2015 at Article 3.2.1. [13] The new rule shifts the burden of establishing flaws in the scientific validity of analytical tools on the athlete’s shoulders.[14] Interestingly enough, the presumption applies only to methods and decisions limits that are scientifically reliable, meaning they must have been approved by WADA after consultation with the relevant scientific community and subject to peer review.[15] At the same time, the provision intends to set new procedural requirements in the judicial review of the analytical methods or decision limits used by WADA. Such a review is subject (1) to a mandatory notice to WADA of the challenge and (2) to the right for WADA to intervene in the CAS proceedings and request from the CAS to appoint an appropriate scientific expert to assist the panel in the evaluation of the challenge.[16]

More importantly, the Veerpalu award sets an important threshold in doping cases – as well as in every case where the CAS has to deal with scientific evidence: the need for scientific validity and systematic transparency before the imposition of any sanction. This development in conjunction with the new rule of evidence of Article 3.2.1 WADC 2015 can be considered as paving the way for a fairer and more realistic chance for Athletes to successfully rebut a doping sanction.[17]

Sinkewitz hGH case: A surprising twist to the Veerpalu saga

The Veerpalu case soon inspired athletes facing anti-doping sanctions. The German cyclist Patrik Sinkewitz and Lallukka, two athletes detected positive for rhGH, attempted to overturn their doping ban based on the Veerpalu precedent. However, the CAS begged to differ.

In the Sinkewitz case, the panel justified its deviation from the Veerpalu award by introducing the ‘borderline’ criterion. Unlike Veerpalu, Sinkewitz’s samples were far higher than the WADA decision limits and, as a result, he could not benefit from the uncertainty of a borderline situation.[18] In view of this, Sinkewitz was found ineligible for 8 years, since it was his second anti-doping rules violation. More importantly, the panel relied on a different evaluation of the hGH test, contradicting thereby the Veerpalu reasoning. According to the Sinkewitz panel, the decision limits defined in WADA Guidelines represent mere means of evidence and can serve as a recommendation to the laboratories, without being, however, mandatory and decisive for determining whether an anti-doping rule violation occurred.[19] This practically means that even in the instance of a ratio below the decision limits or in a borderline situation like the Veerpalu one, the panel could be ‘comfortably satisfied’ by expert evidence identifying rhGH irrespectively of the validity of the decision limits.[20] Contrary to the Veerpalu panel which seemed to rely on a perception of the hGH test as a quantitative analysis applicable to Threshold Substances covered by the Technical Document on Decision limits, the Sinkewitz panel - by characterizing the decision limits as a mere technical criterion for the identification of rhGH - seemed to perceive the hGH test analysis as a qualitative one, implying that more criteria are taken into account.[21]

Lallukka hGH case: Reconciling a conflicting jurisprudence ?

The Sinkewitz panel’s pattern with regard to the hGH tests decision limits was later followed by the Lallukka panel. The latter validated the Sinkewitz conclusion that the decision limits have no legal status and it further used this argument in order to rebut Lallukka’s objection about the retroactive application of legal rules. Since decision limits are not rules as such, but rather means of evidence figured as ‘guidelines’, the rule against retroactivity cannot apply to evidentiary matters.[22] However, it can me remarked that as in the Sinkewitz case the CAS chose to abstain from any criticism with regard to WADA’s practice to incorporate the decision limits into guidelines, instead of enshrining them directly in a mandatory document.[23]

Furthermore, the deviation from the Veerpalu precedent was based on the evidence provided in two independent studies mandated by WADA, i.e. the Mc Gill Study and a study from Prof Jean-Christophe Thalabard, which were merged into a peer- reviewed joint publication paper. According to the panel, the studies responded adequately to the concerns expressed in the Veerpalu case and established the decision limits with a 99.99% specificity. As a result, the panel was comfortably satisfied as regards the reliability of the hGH tests decision limits and Lalluka could not benefit from the Veerpalu precedent.[24]

Nevertheless, although at a first glance being in line with the Sinkewitz award, the Lallukka award added an interesting twist regarding the starting point of the athlete’s suspension. In fact, the panel by reference to the principle of fairness concluded that the athlete’s disqualification would start only from June 2014 onwards, when WADA was in a position to answer in a documented manner, i.e. through the peer-reviewed joint publication paper, the issues raised in the Veerpalu case.[25] Thus, the panel seems to apply the ‘golden rule’ established in the Veerpalu case that a doping sanction could be imposed only on the basis of reliable scientific knowledge. Thereby, creating a sort of legal bridge between the competing lines of CAS jurisprudence and paving the road to a fair reconciliation preserving the rights of the athletes.

Conclusion: Should Veerpalu Stand?

The Veerpalu ruling was a landmark case for the CAS in doping matters and particularly concerning the hGH test. It set a clear standard for future CAS panels: when exercising their daunting task of reviewing decisions based on complex scientific assessments, they need to ensure that these assessments rely on transparent and rigorous scientific practice of the highest quality. The Sinkewitz and Lallukka cases, however, unveiled an unfortunate (partial) retreat from this position. This is not without consequence regarding the credibility of the CAS and the anti-doping fight. The fight for clean sport must be based on the safest scientific standards possible and, to this end, these standards should stay subjected to full CAS scrutiny. With the new WADC 2015 and the rebuttable presumption of scientific validity for analytical methods and decision limits it enshrines, more intriguing legal challenges against the hGH tests are likely to be brought before the CAS. One may wonder whether this new regime will be advantageous for athletes or whether it is an ‘illusion of fairness’, since it seems highly unlikely that athletes without WADA’s extensive network of laboratories and resources can prove the unreliability of the hGH ratios.[26] Whatever the future brings, one thing remains certain in the anti-doping landscape: the CAS’ absolute reluctance to openly question WADA rules belongs to the past.

[1] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka (20 November 2014)

[2] CAS. 2011/A/2566, Veerpalu v. FIS, 25 March 2013, para 83

[3] J Coleman and J Levien, ‘ The burden of proof in endogenous substance cases’ in M McNamee and V Moller (eds) Doping and Anti-Doping Policy in Sport- Ethical, legal and social perspectives (Routledge 2011) 27-49, 37.

[4] K Fischer and  D Berry, ‘Statisticians introduce science to International Doping Agency: The Andrus Veerpalu case’ , 5

[5] For a critical approach on hGH effect on an athlete’s performance, see A Hoffman and others ‘Systematic review: the effects of growth hormone on athletic performance’ (2008) Annals of Internal Medicine, 747-758

[6] To be noted that there is no material change to this approach in the 2014 Guidelines.

[7] CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, para 9

[8] J Coleman and J Levien (n 3), 39.

[9] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu: Struggling to fit anti-doping science into a legal framework’

(19 March 2014) < http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>

[10]  CAS. 2011/A/2566, Veerpalu v. FIS (n 2), paras 204-206.

[11] Ibid, para 206.

[12] Ibid

[13] WADC 2015, Article 3.2.1: “Analytical methods or decision limits approved by WADA after consultation within the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS, on its own initiative, may also inform WADA of any such challenge. At WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the panel in its evaluation of the challenge. Within 10 days of WADA ’s receipt of such notice, and WADA ’s receipt of the CAS file, WADA shall also have the right to intervene as a party, appear amicus curiae or otherwise provide evidence in such proceeding.”

[14] M Viret, ‘How to make science and law work hand in hand in anti-doping’ (2014) Causa Sport : die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft, Issue 2, 106

[15] WADC 2015, Article 3.2.1 (n 13)

[16] Ibid

[17] A Rigozzi, M Viret and E Wisnosky  ‘Does the World Anti-Doping Code Revision Live up to its Promises? – A preliminary survey in the main changes in the final draft of the 2015 WADA Code, Jusletter of 11  November 2013

[18] CAS 2012/A/2857 Nationale Anti-Doping Agentur Deutschland v. Patrick Sinkewitz (24 February 2014), para 204.

[19] Ibid, para 192

[20] WADC, Article 3.2: “Facts related to anti-doping rule violations may be established by any reliable means, including admissions.”

[21] M Viret and E Wisnosky (n 9)

[22]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 112-116

[23] M Viret and E Wisnosky (n 9)

[24]CAS 2014/A/3488, World Anti-Doping Agency v. Mr Juha Lallukka, paras 98-99

[25] Ibid, para 137

[26] J Coleman and J Levien (n 3), 39.