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.

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017.

The most salient human rights risks

FIFA faces human rights risks through its events, commercial subsidiaries and business partners, member associations or other parties. This section identifies sources of human rights risks that are most often associated with FIFA's activities.

Bidding and selection

Allegations of corruption have cast a shadow over FIFA's decision to organize the 2018 and 2022 World Cup in Russia and Qatar respectively.[2] If these allegations were proven to be true, it would be conceivable that financial incentives provided by the successful candidates helped them not only to secure the right to stage the tournament, but also to evade certain requirements, including those related to human rights. As Ruggie puts it, ''lack of financial integrity […] is a foundational source of human rights risks''.[3]

Moreover, in the past, countries bidding to host FIFA's tournaments have not been required to present a strategy addressing human rights risks that may arise in connection with the tournament’s organization. This allowed Qatar to win the bidding contest for the 2022 World Cup without explaining how it plans to protect migrant workers from the adverse impacts of the kafala system. Another example is Papua New Guinea that was awarded the 2016 U-20 Women's World Cup despite the country's high rate of sexual violence against women.

Construction

FIFA delegates the organization of the World Cup to the Local Organizing Committee ('LOC'), a separate legal entity created by the government and the national football association of the Host Country. The LOC is responsible, inter alia, for the delivery of World Cup-related infrastructure. In order to meet their deadlines, contractors hired by the LOC may ignore safety standards or force their employees to work overtime. Other reported practices include, for instance, appalling living and working conditions, non-payment of salaries, withholding identity documents or restrictions on the freedom of association.

In March 2017, Norwegian football magazine Josimar uncovered a series of human rights abuses faced by North Korean men working at Zenit Arena in Saint Petersburg. As recently as 14 June 2017, Human Rights Watch documented the mistreatment of construction workers at five other World Cup stadium construction sites in Russia. As the situation in Qatar has not been much better,[4] the Netherlands Trade Union Confederation filed in December 2016 a lawsuit with the Commercial Court of the Canton of Zürich, asking the court to find FIFA responsible for alleged human rights violations of migrant workers. The court dismissed the lawsuit on jurisdictional grounds in January 2017 (for a detailed analysis, see our blogs here and here).

Discrimination

Article 4 of the FIFA Statutes prohibits ''discrimination of any kind against a country, private person, or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth, or any other status, sexual orientation or any other reason''. In practice, FIFA must enforce this provision by taking further action to tackle issues such as anti-gay legislation in countries where its tournaments are staged, homophobic chants by fans or gender discrimination in the world of association football. 

Players' rights 

In January 2017, the international players' association FIFPro published a Global Employment Report on working conditions in men's professional football. Out of nearly 14,000 players interviewed, 41% reported having experienced delayed salary payments over the past two seasons. Players who lodge a formal complaint against their club put themselves at risk of being excluded from the squad or subjected to violence and harassment. FIFPro strongly condemned these practices and called upon FIFA to reform its Regulations on the Status and Transfer of Players ('RSTP') to ''provide stronger protections of players against material breaches of contracts by clubs''.[5] Another issue that merits closer attention is human trafficking in football, especially as it often involves minors.[6]

Other 

In addition to the above, FIFA could better address human rights abuses that may occur (i) in the supply chains of its licensees; (ii) in the process of land acquisition for stadiums and event-related infrastructure; or (iii) in connection with event-related security measures.

Overview of the measures taken by FIFA

First and foremost, FIFA strengthened its internal capacity to deal with human rights risks. In 2016, FIFA established the Governance Committee which provides, via its Human Rights Working Group, strategic guidance to the FIFA Council on human rights-related matters. At the operational level, the overall responsibility for the implementation of FIFA's human rights commitment rests with the Secretary General who delegates the day-to-day management of human rights-related work to the Sustainability and Diversity Department. In September 2016, FIFA employed a Human Rights Manager to work within this department. Moreover, in March 2017, FIFA appointed an independent Human Rights Advisory Board with the view of accelerating its efforts to embed respect for human rights. Composed of experts from the United Nations, trade unions, civil society and business, the Advisory Board is scheduled to meet at least twice a year. It has already contributed to the development of FIFA's Human Rights Policy, a landmark document clarifying FIFA's approach to the implementation of its human rights commitment in accordance with the UN Guiding Principles.

The rest of this section looks at the most significant steps taken by FIFA in each of the areas outlined above.

Bidding and selection

The FIFA Council has recently agreed that, as of the 2026 World Cup, human rights requirements will feature in the bidding procedure. This is of paramount importance as it means that countries failing to present an effective human rights strategy should not be allowed to host the World Cup. In other words, the protection of human rights will constitute a material factor in the bid evaluation. Had such requirements existed at the time of the bidding procedure for the 2022 World Cup, Qatar would arguably never have been selected.

The bidding procedure for the 2026 World Cup, the first to feature 48 teams, is currently in an early stage, and therefore bidding requirements are not yet available. The Host Country of the 2026 World Cup will be announced in 2020 at the latest.

Construction

As part of the implementation of the Sustainability Strategy for the 2018 World Cup, FIFA and the Russia 2018 LOC have launched a Decent Work Monitoring System aimed at detecting non-compliance with labour standards at World Cup stadium construction sites. Under this system, two-day on-site inspections are conducted on a quarterly basis by the Klinsky Institute of Labour Protection and Working Conditions, at times accompanied by the Building and Wood Workers' International ('BWI') and the Russian Building Workers Union ('RBWU').[7] After each inspection, companies are provided with a report containing recommendations for further improvement of working conditions. This report is forwarded to FIFA and the Russia 2018 LOC, and, in cases where the health or safety of workers are seriously threatened, also to the competent Russian authorities. As of 14 June 2017, a total of 58 inspections have been carried out.[8]

In Qatar, the Supreme Committee for Delivery and Legacy ('Supreme Committee'), an entity tasked with the delivery of World Cup-related infrastructure,[9] has developed a comprehensive set of Workers' Welfare Standards ('WWS'). Inspired by international labour standards, the WWS are mandatory for all contractors working on World Cup-related construction projects. To see whether contractors are adhering to these standards, the Supreme Committee has designed a four-tier monitoring system which comprises due diligence conducted by the Supreme Committee, the British company Impactt Ltd.,[10] the Qatari Ministry of Labour and contractors themselves. As of February 2017, the implementation of the WWS is further monitored via on-site inspections carried out jointly by the Supreme Committee and the BWI.[11]

Discrimination 

Establishment of the Anti-Discrimination Monitoring System in May 2015 is regarded as the most significant step taken by FIFA to combat discrimination in the world of football. This system uses independent observers who are present at matches identified as involving heightened risks of discriminatory incidents. Based on the reports provided by these observers, FIFA may open disciplinary proceedings and eventually impose sanctions on member associations. For instance, several Latin American associations have been sanctioned for homophobic chants by spectators during the 2018 World Cup qualifying matches.

Internally, FIFA promotes gender equality by requiring each of the six confederations to reserve at least one seat in the FIFA Council for women.[12]

Players' rights

As far as the protection of players' rights is concerned, FIFA informs that it has introduced certain measures intended to preserve confidentiality of the data available in the Transfer Matching System.[13] Furthermore, on 1 March 2015, FIFA modified the RTSP so as to put in place 'fast-track' proceedings for disputes concerning overdue payable claims (for a detailed analysis, see our blogs here and here).[14]

Other

In addition to contractors working on World Cup-related construction projects, other companies having business relationships with FIFA are now required to strengthen their human rights compliance. These include the suppliers of FIFA-licensed balls, artificial turf and technology used in games. Before a license agreement is entered into between FIFA and the supplier, FIFA must satisfy itself that both the supplier and its manufacturer are in compliance with the World Federation of the Sporting Goods Industry ('WFSGI') Code of Conduct, whose purpose is ''to guide WFSGI members in the standards and practices expected in the workplaces that they operate or contract from''.[15] Should FIFA-licensees cease to comply with the standards laid down in the WFSGI Code of Conduct, FIFA may decide to withdraw its license.

Concluding Remarks

The aforementioned report on human rights violations of World Cup-related construction workers in Russia, published by Human Rights Watch in June 2017, came as a major setback to the otherwise encouraging measures taken by FIFA in respect of human rights compliance. This and similar reports demonstrate that FIFA's human rights activities have not yet produced their desired effect. To increase the efficiency of its human rights activities in the future, FIFA should probably engage in a tougher discussion with the competent authorities of the Host Country. This is important because event-related human rights abuses often flow from inadequate domestic legislation and administrative practices of the Host Country.[16] Examples from the past show that FIFA is able to exert pressure on the future Host Country to modify its domestic legislation when it is in the interest of FIFA's sponsors.[17] At the risk of stating the obvious, it is hard to understand why FIFA's sponsors should be prioritized over thousands of people facing human rights abuses in connection with the organization of the World Cup. Thus, a lot will depend on FIFA's amendment of the bidding requirements for the 2026 World Cup. Though it may sound optimistic and far-fetched, if FIFA were to award the World Cup taking into account human rights compliance of the potential Host Countries, it could become a strong force in spreading the human rights gospel across the globe.

[1]    John G. Ruggie, 'For the Game. For the World. FIFA and Human Rights' (April 2016) p. 19.

[2]    Jonathan Calvert and Heidi Blake, 'Plot to Buy the World Cup' (The Sunday Times, 1 June 2014). See also David Conn, 'France Investigates Votes for 2018 and 2022 World Cups and Questions Blatter' (The Guardian, 27 April 2017).

[3]    See Ruggie's report (n 1) p. 21.

[4]    Amnesty International, 'The Ugly Side of the Beautiful Game: Exploitation of Migrant Workers on a Qatar 2022 World Cup Site' (30 March 2016).

[5]    FIFPro, '2016 FIFPro Global Employment Report: Working Conditions in Professional Football' (January 2017) p. 30.

[6]    See Ruggie's report (n 1) p. 25.

[7]    In August 2016, the BWI and the RBWU signed a memorandum of understanding with FIFA and the 2018 World Cup LOC.

[8]    FIFA, 'Statement on Human Rights Watch Report on Russia' (14 June 2017).

[9]    The Supreme Committee works closely with the Qatar 2022 LOC.

[10]   In April 2017, Impactt Ltd. published its first report.

[11]   The Supreme Committee and the BWI signed a memorandum of understanding in November 2016.

[12]   FIFA Statutes, Article 33(5). See also FIFA, '2016 Reform Committee Report' (2 December 2015) p. 9.

[13]   RSTP, Definitions.

[14]   RSTP, Article 12bis.

[15]   WFSGI Code of Conduct, Introduction.

[16]   It should be noted that, in December 2016, the Qatari government introduced certain reforms to its labour laws. However, Amnesty International asserted that these reforms ''barely scratch the surface of labour exploitation''.

[17]   One such example is the well-known 'Budweiser Law' – a law enacted by Brazil in the run-up to the 2014 World Cup allowing beer sales at match venues despite the fact that the sale of alcohol had been prohibited in Brazil's stadiums for almost ten years.

Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:

• Act I: Saved by the Osaka Déjà-Vu
• Act II: On being implicated 
• Act III: On being sufficiently tested
• Act IV: On Bringing a sport into disrepute

Act V: Saving the last (Russian) woman standing: The Klishina miracle 

Darya Klishina is now an Olympic celebrity. She will enter the history books not because she won a gold medal or beat a world record. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jumping contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina appealed the decision to the CAS ad hoc Division and, as all of you well-informed sports lawyers will know, she was allowed to compete at the Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised by this case:

• Why did the IAAF changed its mind and decide to retract Klishina’s authorization to participate?
• Why did the CAS overturn this decision?

A.    The IAAF’s second thoughts over the implication of Klishina

What happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and especially evidence showing “that the Applicant had been directly affected and tainted by the State-organised doping scheme described in the IP Report”.[1] More concretely, according to the Report, Klishina was affected in the following three ways:

      i.   “a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a "SAVE" order by the Ministry of Sport on 3 March 2014;

      ii.   a sample collected on 17 October 2014 and subsequently seized by WADA December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and

      iii.  a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”[2]

In its original decision, the DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted”.[3] Thus, unsurprisingly, the CAS acknowledged that the DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, surprisingly, it found that such reconsideration was not legitimate in light of the new information gathered.

B.    The surprising decision of CAS to let Klishina jump

Klishina won in front of the CAS. From the outset this is a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games.[4] Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why on earth would the CAS decide to let her jump?

This decision is intimately linked with the legal basis of the original decision of the DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,[5] the Klishina case demonstrates that this is not universally true in practice. The main point was that the IAAF’s DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”[6] and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:

• “The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
• She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
• She regularly competes in competitions on the international circuit;
• A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
• 1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”[7]


The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel[8], could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel starts by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable”.[9]

The CAS Panel insists that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation”.[10] Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended”.[11] Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked”.[12] It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule”.[13] This analysis leads to an unfair solution as the undisputed evidence points at Klishina profiting not once but on three occasions from the Russian doping scheme and still this evidence is not considered as relevant to reconsider the IAAF’s original decision to let her jump.

This decision is grounded on the following legal reasoning: the Panel considers that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation”.[14] The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility”.[15] And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision”.[16] Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia”.[17] Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject”.[18] In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion”.[19] This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period”.[20] Hence, it “is not addressed to the implication of an athlete in a defective system”.[21] Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country”.[22] In a nutshell, for the CAS Panel, the “relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked”.[23] No, the only question is “whether she fulfilled the criteria of the Rule”.[24] And the answer to that question is: she did early July; and she still does in August!

This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics. It did not happen, Zeus only knows why…

Epilogue

These five blogs have discussed the awards rendered by the CAS ad hoc Division in Rio involving Russian athletes wishing to compete at the Olympics. In general, the CAS has been willing, with few exceptions (Efimova and Klishina), to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. But, it has surprisingly let Klishina jump, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian State-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.

These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response of the SGBs seriously. Unfortunately, and this is one of the negative consequences of the IOC’s decision to not decide, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.

Finally, the awards show that CAS arbitrators would have been ready to condone a general exclusion of Russian athletes, with a narrow exception for those not tainted by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation (this is very much the position adopted in the recent decision of the CAS in the dispute between the Russian Paralympic Committee and the International Paralympic Committee). The CAS recognized the seriousness of the situation and the collective responsibility of Russian sports organizations. It seemed also ready to follow up on this collective responsibility by endorsing collective sanctions that would most likely have been found compatible with the Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave you to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the World Anti-Doping Code. What is certain, however, is that the World Anti-Doping System needs an overhaul (for some reform proposals/directions see here) sooner rather than later.

[1] CAS OG 16/24 Darya Klishina v. IAAF, para. 2.12.

[2] Ibid.

[3] Ibid., para. 2.8.

[4] See Act II of this blog series.

[5] See CAS OG 16/13 Anastasia Karabelshikova and
Ivan Podshivalov v. 
World Rowing Federation (FISA)
and
International Olympic Committee (IOC), para. 7.14 and CAS OG 16/12 Ivan Balandin v. FISA & IOC, para. 7.22.

[6] CAS OG 16/24 Darya Klishina v. IAAF, para. 7.3.

[7] Ibid., para. 7.14.

[8] Ibid., paras 7.40-45.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.34.

[11] Ibid., para. 7.35.

[12] Ibid., para. 7.46.

[13] Ibid.

[14] Ibid., para. 7.56.

[15] Ibid.

[16] Ibid.

[17] Ibid., para. 7.57.

[18] Ibid.

[19] Ibid., para. 7.58.

[20] Ibid., para. 7.60.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.